CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EUSEBIO RAMON,

Defendant and Appellant.

F054603

(Super. Ct. No. BF119690A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.

Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Eusebio Ramon was stopped by a Kern County Sheriff’s deputy while driving a stolen vehicle and with an unregistered firearm in his possession. A jury convicted him of (1) receiving a stolen vehicle (Pen. Code, § 496d); (2) possession of a firearm by a felon (§ 12021, subd. (a)(1)) (hereafter section 12021(a)(1)); (3) carrying a loaded firearm while a member of a criminal street gang (§ 12031, subd. (a)(2)(C)) (hereafter section 12031(a)(2)(C)); and (4) carrying a loaded firearm for which he was not the registered owner (§ 12031, subd. (a)(2)(F)) (hereafter section 12031(a)(2)(F)). The jury also determined (1) Ramon was a member of a criminal street gang; (2) the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang; and (3) Ramon committed the crimes with the specific intent to promote, further, or assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1); hereafter section 186.22(b)(1).)

Ramon contends that the section 186.22(b)(1) enhancement was not supported by substantial evidence and that he cannot be convicted twice of violating section 12031 for possessing the same firearm. We agree with both of Ramon’s contentions. We will vacate the section 186.22(b)(1) enhancement and reverse the section 12031(a)(2)(F) conviction and remand the matter for resentencing.

FACTUAL AND PROCEDURAL SUMMARY

Juana Uribe left her pickup truck in her driveway when she went out of town. When she returned the next day, the truck was missing. She reported the vehicle to the police as stolen. The police found her truck at 5:00 a.m. the following morning. Uribe had never met either Ramon or codefendant Carlos Martinez, Jr., and neither had permission to take the truck from her driveway.

When the truck was returned to Uribe, she noticed the stereo was missing, there were dents along the side, and there were cigarette burns in the seats. The police showed Uribe a firearm that was found inside the truck. The firearm did not belong to Uribe.

Kern County Deputy Sheriff Lance Grimes was on patrol when he recognized Uribe’s truck from the report Uribe had filed. Grimes initiated a traffic stop, but the truck pulled over to the side of the road before Grimes activated his emergency lights. Ramon was driving the truck and Martinez was in the front passenger’s seat.

Grimes found a handgun under the driver’s seat. A check determined the handgun was not registered. No fingerprints were found on the gun. Neither occupant of the vehicle made any gang signs or attempted to gain possession of the gun. The key with which the vehicle was being operated appeared to be a standard key. There was no apparent damage to the truck’s ignition. There were no other cars in the vicinity at the time of the traffic stop.

Kern County Deputy Sheriff Scott Lopez testified as an expert witness on the topic of criminal street gangs. Ramon does not argue on appeal that Lopez was not qualified to testify as an expert witness or that there was insufficient evidence to support the finding that he was a member of the Colonia Bakers criminal street gang. We will, therefore, focus on the portions of the testimony that relate to the issues on appeal.

Lopez testified that the location where Ramon and Martinez were stopped was in the heart of Colonia Bakers gang territory. The territory is controlled through violence and intimidation. The primary activities of the Colonia Bakers gang were identified as (1) sales and possession of narcotics; (2) theft; (3) extortion; (4) burglaries; (5) robberies; (6) car theft; and (7) victim and witness intimidation.

When asked how possession of a stolen truck related to the above crimes, Lopez stated, “Driving a stolen truck within your territory, you could conduct numerous crimes. Any one of those crimes I mentioned you could conduct with a stolen vehicle and then dispose of that vehicle at the drop of a hat and have no ties to it, nor ties to the crime you just committed in that vehicle.”

When asked about possession of a firearm, Lopez responded, “It’s basically the same answer. You could, while in the stolen vehicle with a — not a stolen gun — an unregistered gun, you could conduct any one of those crimes that I mentioned and not have any ties to the gun, not have any ties to the vehicle. And you could dispose of either one of those without having to worry about having ties back to you or the crime that you had just committed.” Lopez later testified that the unregistered gun and stolen vehicle could be used to spread fear and intimidation. Therefore, according to Lopez, driving a stolen vehicle and possessing an unregistered firearm provided a benefit to the Colonia Bakers criminal street gang.

When asked a hypothetical question about whether the circumstances involved in this case—two gang members driving a recently stolen vehicle in gang territory with an unregistered firearm in the vehicle—would benefit the Colonia Bakers criminal street gang, Lopez replied, “Yes, sir. There’s a huge benefit in furtherance of the gang. They could — I’m sorry — they could commit any one of those crimes I mentioned before in furtherance of the gang to benefit the gang; robbery, burglary, carjacking, any one of those crimes that could be committed while in possession of that truck or that firearm could be in furtherance of the Colonia Bakers street gang.” Lopez then confirmed that the stolen vehicle and unregistered firearm were the tools the gang needed to commit other crimes to further the gang.

The amended information charged Ramon with (1) receiving stolen property (§ 496d); (2) being a felon in possession of a firearm (§ 12021(a)(1)); (3) possession of a firearm while an active gang member (§ 12031(a)(2)(c)); and (4) carrying a loaded firearm in public for which he was not the registered owner (§ 12031(a)(2)(f)). In addition, each count also alleged each of the following enhancements: (1) The crimes were committed for the benefit of a criminal street gang, in violation of section 186.22(b)(1); (2) Ramon suffered a prior conviction that constituted a strike within the meaning of section 667, subdivisions (b) through (i); (3) Ramon suffered two prior convictions and served prison sentences therefore within the meaning of section 667.5, subdivision (b); and (4) Ramon suffered a prior conviction that constituted a serious felony within the meaning of section 667, subdivision (a).

The jury found Ramon guilty of each charged crime and found that counts 1, 2, and 4 were committed for the benefit of a criminal street gang. After Ramon waived his right to a jury trial, the trial court found each of the remaining enhancements to be true.

The trial court sentenced Ramon to a midterm sentence of two years for receiving a stolen vehicle, which was doubled to four years pursuant to the provisions of section 667, subdivisions (b) through (i). He was sentenced to a consecutive term of 16 months, one-third the midterm sentence after it was doubled pursuant to the provisions of section 667, subdivisions (b) through (i), for possession of a firearm while a felon. Ramon’s sentence for receiving a stolen vehicle was increased by three years pursuant to section 186.22(b)(1)(A), five years pursuant to section 667, subdivision (a), and one year pursuant to section 667.5, subdivision (b). His sentence for possession of a firearm was increased by one year (one-third the midterm) pursuant to section 186.22(b)(1)(A). The trial court stayed the sentences on the remaining counts. The trial court sentenced Ramon to a total of 15 years four months in state prison.

DISCUSSION

I. Sufficiency of the Evidence to Support the Gang Enhancement

The jury found that Ramon committed counts 1, 2, and 4 for the benefit of a criminal street gang within the meaning of section 186.22(b)(1). This statute provides that “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: .…” (Id., subd. (b)(1)(A)-(C).)

The section 186.22(b)(1) enhancement requires the jury to find that the crime was committed for the benefit of a criminal street gang and with the specific intent to promote the criminal street gang. The only evidence on this issue was provided by the People’s expert witness, Lopez. His testimony has been thoroughly reviewed above. In summary, Lopez relied on two independent facts in forming his opinion: (1) Both Ramon and codefendant Martinez were members of the Colonia Bakers criminal street gang, and (2) the two were stopped in territory claimed by the Colonia Bakers. From these two facts, along with the crimes the two were accused of committing, Lopez opined that the crime was committed for the benefit of the Colonia Bakers criminal street gang and was intended to promote the Colonia Bakers. Lopez’s opinion was based on his belief that because the gun and the stolen vehicle could be used to facilitate the commission of a crime, and the Colonia Bakers commit crimes, the two must have been acting on behalf of the Colonia Bakers.

Ramon contends Lopez’s testimony did not constitute substantial evidence to support his conviction. Ramon does not suggest there was insufficient evidence to support the two facts on which Lopez relied. Instead, Ramon argues these facts were not sufficient to permit Lopez to opine that the crimes were committed for the benefit of and with the specific intent to promote the Colonia Bakers criminal street gang.

To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403.) The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Id. at p. 396.) In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.)

In People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), the People’s expert witness opined, through hypothetical questions, that every gang member in three cars apparently traveling together would know that a gun was located in one of the cars and would intend to possess that gun for his mutual protection. (Id. at p. 652.) After a lengthy review of expert testimony in gang cases, we held that that the officer’s opinion was nothing more than his view of how the case should have been decided and was inadmissible. (Id. at p. 658.)

This issue again was addressed by this court in In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.). The minor defendant in this case was stopped after committing a traffic violation. The minor gave a false name to the officer and was found to have concealed on his person a weapon, as well as methamphetamine. The minor told the arresting officer that he carried the weapon to protect himself from “‘the Southerners.’” The People’s expert testified that the minor was an active member in a criminal street gang and that he possessed the weapon for his protection. The expert also testified that the gang benefited from the minor’s possession of the weapon because it could be used for his protection and the protection of other gang members. (Id. at pp. 1195-1196.) Based on this evidence, the trial court found true a section 186.22(b)(1) enhancement. We reversed the true finding on the gang enhancement.

“In the present case, the expert simply informed the judge of her belief of the minor’s intent with possession of the knife, an issue reserved to the trier of fact. She stated the knife benefits the Norteños since ‘it helps provide them protection should they be assaulted by rival gang members.’ However, unlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang .…’ Citation. The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (Frank S., supra, 141 Cal.App.4th at p. 1199.)

This case cannot be distinguished in a meaningful manner from Killebrew or Frank S. The People’s expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury’s finding. There were no facts from which the expert could discern whether Ramon and Martinez were acting on their own behalf the night they were arrested or were acting on behalf of the Colonia Bakers. While it is possible the two were acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1133.) “‘To be sufficient, evidence must of course be substantial. It is such only if it “‘reasonably inspires confidence and is of “solid value.”’” By definition, “substantial evidence” requires evidence and not mere speculation. In any given case, one “may speculate about any number of scenarios that may have occurred .… A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work…. A finding of fact must be an inference drawn from evidence rather than … a mere speculation as to probabilities without evidence.”’” (Ibid.)

The People point out that two factors missing in Frank S. are present in this case: (1) Ramon was with another gang member, and (2) Ramon was in gang territory. These facts, standing alone, are not adequate to establish that Ramon committed the crime with the specific intent to promote, further, or assist criminal conduct by gang members. While Ramon may have been acting with this specific intent, there is nothing in the record that would permit the People’s expert to reach this conclusion.

In reaching our conclusion in Killebrew, we analyzed People v. Gardeley (1996) 14 Cal.4th 605. Specifically relevant to this case is the following quote from Gardeley: “Of course, any material that forms the basis of an expert’s opinion testimony must be reliable. Citation. For ‘the law does not accord to the expert’s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.’ Citation.” (Id. at p. 618.) The facts on which Lopez based his testimony were insufficient to permit him to construct an opinion about Ramon’s specific intent in this case. His opinion, therefore, cannot constitute substantial evidence to support the jury’s finding on the gang enhancement.

The People have not cited any case that remotely resembles the facts of this case or that supports their position. In People v. Ferraez (2003) 112 Cal.App.4th 925, the jury found the defendant violated section 186.22, subdivision (a) by actively participating in a criminal street gang and assisting in felonious criminal conduct. The appellate court held there was sufficient evidence in the record to support this conviction. The People elicited testimony from their expert that the crime was committed for the benefit of a criminal street gang and assisted felonious conduct by the gang. The appellate court noted that “the expert’s testimony alone would not have been sufficient to find the … offense was gang related. But here it was coupled with other evidence from which the jury could reasonably infer the crime was gang related. Defendant planned to sell the drugs in Las Compadres gang territory. His statements to the arresting officer that he received permission from that gang to sell the drugs at the swap mall and his earlier admissions to other officers that he was a member of the Walnut Street criminal street gang, a gang on friendly terms with Las Compadres, also constitute circumstantial evidence of his intent.” (Ferraez, at p. 931.) While the defendant in Ferraez and Ramon were both members of criminal street gangs, Ramon did not admit that he was acting at the behest of or with the permission of the Colonia Bakers.

The issue in People v. Zepeda (2001) 87 Cal.App.4th 1183 (Zepeda) was whether expert testimony should have been allowed in a murder trial. Ample evidence connected the defendant to the crime. The victim, however, was a complete stranger to the defendant. The victim was a member of a Norteño criminal street gang, while the defendant was a member of a Sureño criminal street gang. The victim was walking down the street when the defendant drove up and asked him, “‘where are you from?’” (Id. at p. 1190.) The defendant then fired several shots at the victim and drove away. The People offered expert testimony to establish a motive for the shooting. When asked why someone would ask where a person was from and then shoot him or her, the officer stated that the primary reasons would be to establish the gang in the neighborhood and to establish the defendant within the gang. By doing so, the gang’s reputation was enhanced and it would be easier to attract recruits. (Id. at pp. 1207-1208.) The appellate court concluded the expert testimony was admissible testimony on the culture and habits of criminal street gangs. (Id. at pp. 1208-1209.)

Unlike Zepeda, Ramon’s motive was not an issue at trial. The issue in the gang enhancement context was whether Ramon was acting with the specific intent of assisting his criminal street gang. In Zepeda the expert provided a possible motive for the shooting. Motive, however, was not an element of the offense, nor was the prosecution required to prove the defendant’s motive. Therefore, while the expert testimony would assist the jury in understanding why the victim was murdered, it did not have to be proven beyond a reasonable doubt. Other evidence was used to prove the defendant was the person who killed the victim.

Here, the People’s expert gave a possible motive or reason for Ramon being in possession of the stolen vehicle and gun. The prosecution, however, was required to prove this fact beyond a reasonable doubt. While the People’s expert’s opinion certainly was one possibility, it was not the only possibility. And, as stated ante, a mere possibility is not sufficient to support a verdict.

The analysis might be different if the expert’s opinion had included “possessing stolen vehicles” as one of the activities of the gang. That did not occur and we will not speculate.

Simply put, in order to sustain the People’s position, we would have to hold as a matter of law that two gang members in possession of illegal or stolen property in gang territory are acting to promote a criminal street gang. Such a holding would convert section 186.22(b)(1) into a general intent crime. The statute does not allow that. (See § 186.22(b)(1); People v. Hill (2006) 142 Cal.App.4th 770, 774.)

The remaining cases we have reviewed, those cited by the parties and as a result of our own research, have not revealed any situation where expert testimony about a possible reason for committing a crime was sufficient, by itself, to establish the crime was committed with the specific intent to promote, further, or assist in criminal conduct by gang members. We confirm that such testimony is not sufficient to support a section 186.22(b)(1) enhancement. Accordingly, we vacate the true finding on this enhancement.

II. Two Section 12031 Convictions

The jury convicted Ramon of (1) possession of a firearm by a felon (§ 12021(a)(1)); (2) possession of a loaded firearm while a member of a criminal street gang (§ 12031(a)(2)(C)); and (3) possession of a loaded firearm for which he was not the registered owner (§ 12031(a)(2)(F)). The trial court imposed a sentence on the section 12021(a)(1) count and stayed the sentences on the other two firearm counts pursuant to section 654. Ramon argues the trial court should have struck either the possession of a loaded firearm by a member of a criminal street gang count or the possession of a loaded firearm for which he was not the registered owner count.

Ramon does not argue that one of these counts was a lesser included offense to the other. Although section 954 permits the accusatory pleading to charge “‘different statements of the same offense,’” and also permits a conviction for “‘any number of the offenses charged,’” “there is an exception to the general rule permitting multiple convictions. ‘Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. Citations.’ Citation. ‘“The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” Citations.’ Citation.” (People v. Ortega (1998) 19 Cal.4th 686, 692, overruled on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1230-1231.)

Neither offense on which Ramon focuses is necessarily included in the other. A required element of a violation of section 12031(a)(2)(C) is that the defendant be a member of a criminal street gang. This is not an element of a violation of section 12031(a)(2)(F). Similarly, a required element of a violation of section 12031(a)(2)(F) is that the defendant not be the registered owner of the firearm. A defendant could violate section 12031(a)(2)(C) even if he were the registered owner of the firearm. Accordingly, neither violation is necessarily committed when committing the other offense.

The People focus on this difference in urging us to reject Ramon’s argument. In making this argument, the People miss Ramon’s point. He argues that the two convictions cannot both stand because section 12031(a)(2)(C) and (a)(2)(F) are not separate offenses, but instead are different penalty provisions for the same offense.

This issue was thoroughly addressed in People v. Muhammad (2007) 157 Cal.App.4th 484 (Muhammad) where the defendant was convicted of four counts of stalking based on the same set of facts. The appellate court began by explaining the issue.

“The heart of the parties’ dispute focuses on whether subdivisions (a), (b), and (c)(1) and (2) of section 646.9 define separate substantive offenses, each with its own distinct elements. Defendant argues they do not and, instead, merely define the one substantive offense of stalking, with enhancements or alternative punishments for that offense. Thus, he argues his convictions on counts 1 through 3 must be vacated. The People respond that these subdivisions describe separate substantive offenses, and, for this reason, section 954 permits multiple convictions.…

“In resolving this dispute, we find People v. Kelley (1997) 52 Cal.App.4th 568, instructive. In Kelley, the defendant, who previously had been prosecuted and convicted of misdemeanor contempt (§ 166, subd. (a)(4)) for violating a restraining order, was charged with stalking in violation of the same restraining order under section 646.9(b). (Kelley, at pp. 574-575.) As Kelley explained, the double jeopardy clause of the Fifth Amendment prohibits a person from being prosecuted twice for the same offense or any included offense, and the test is whether each offense contains an element the other does not. (Kelley, at p. 576.) The defendant argued that his prosecution for stalking violated the prohibition against double jeopardy because the crime of stalking in violation of a restraining order contains all the elements of the crime of contempt for violating that restraining order. (Ibid.) In rejecting the argument, the court stated, ‘In making this argument, the defendant incorrectly assumes section 646.9 defines the crime of stalking in violation of a restraining order. The section merely defines stalking. The provisions relating to the violation of a restraining order do not define a crime. They merely create a punishment enhancement. As such, they are not to be considered in the double jeopardy analysis. Citation. Absent these provisions, the crimes are distinct and the constitutional prohibition against double jeopardy was not violated.’ (Kelley, at p. 576, fn. omitted; citations.)” (Muhammad, supra, 157 Cal.App.4th at pp. 490-491, fn. omitted.)

The appellate court held that section 646.9, subdivisions (a), (b) and (c) do not create separate offenses, but instead create different punishment enhancements. To bolster this conclusion, the court relied on the definition of the relevant terms.

“A substantive ‘crime or public offense’ is defined as ‘an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: 1. Death; 2. Imprisonment; 3. Fine; 4. Removal from office; or 5. Disqualification to hold and enjoy any office of honor, trust, or profit in this State.’ Citation.

“‘By definition, a sentence enhancement is “an additional term of imprisonment added to the base term.”’ Citations.

“‘“A penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged. Citations.”’ Citations.

“Despite language to the contrary in Kelley, we conclude that subdivisions (b), and (c)(1) and (2) of section 646.9 are not sentence enhancements; they clearly do not add an additional term of imprisonment to the base term.

“‘The California Supreme Court has recognized, however, that statutory provisions which are not “enhancements” in the strict sense are nevertheless “penalty provisions” as opposed to substantive offenses where they are “separate from the underlying offense and do not set forth elements of the offense or a greater degree of the offense charged. Citations.”’ Citations. Phrased slightly differently, a penalty provision does not define a substantive offense, but ‘“‘focuses on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.’ Citation.” Citations.’ Citation. …

“Similarly, subdivisions (b), and (c)(1) and (2) of section 646.9 do not define a substantive offense. Subdivision (a) sets out the elements of the crime of stalking. Subdivisions (b) and (c), after referring to subdivision (a), focus on ‘“‘the criminal history of the defendant which is not present for all such … perpetrators and which justifies a higher penalty than that prescribed for stalking.’ Citation.” Citations.’ Citations. The effect of subdivisions (b) and (c) is to establish a higher base term for stalking when it is committed by a defendant with a particular criminal history. Moreover, the jury does not consider the truth of these penalty facts until it has reached a verdict on the substantive stalking offense under subdivision (a). Citation.

“We conclude that subdivisions (b), and (c)(1) and (2) of section 646.9 are penalty provisions triggered when the offense of stalking as defined in subdivision (a) of that section is committed by a person with a specified history of misconduct.” (Muhammad, supra, 157 Cal.App.4th at pp. 492-494, fns. omitted.)

Section 12031 clearly falls within the definition of a penalty provision provided by Muhammad. Section 12031, subdivision (a)(1) sets forth the elements of the crime of carrying a concealed firearm: “when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.”

Subdivision (a)(2) of section 12031 establishes the penalty for violation of subdivision (a)(1) of section 12031, depending on the circumstances surrounding the offense or the offender. If the defendant has a previous felony conviction, or a previous conviction of this chapter, a violation of subdivision (a)(1) is a felony. (Id., subd. (a)(2)(A).) If the firearm is stolen, then a violation of subdivision (a)(1) is a felony. (Id., subd. (a)(2)(B).) If the defendant is a member of a criminal street gang, a violation of subdivision (a)(1) is a felony. (Id., subd. (a)(2)(C).) Where the defendant does not lawfully possess the firearm, or is prohibited from possessing a firearm by statute, a violation of subdivision (a)(1) is a felony. (Id., subd. (a)(2)(D).) If the defendant has certain specified prior convictions, then a violation of subdivision (a)(1) is a wobbler, punishable as either a felony or a misdemeanor. (Id., subd. (a)(2)(E).) If the defendant is not the registered owner of the firearm, then a violation of subdivision (a)(1) is a wobbler, punishable as either a felony or a misdemeanor. (Id., subd. (a)(2)(F).) If the defendant does not fit within any of the above categories, the crime is punishable as a misdemeanor. (Id., subd. (a)(2)(G).)

Therefore, a violation of section 12031, subdivision (a)(1) is a crime, and subdivision (a)(2)(A) through (G) of section 12031 simply establishes the penalty based on the circumstances of the offense and the offender. The trial court erred, therefore, when it entered judgment for violation of section 12031(a)(2)(C) and (a)(2)(F). Under the facts of this case, Ramon violated section 12031, subdivision (a)(1) only once and can be convicted only once of this crime. We will, therefore, order the conviction for violating section 12031(a)(2)(F) vacated and affirm the conviction for violating section 12031(a)(2)(C).

DISPOSITION

The enhancement based on the jury’s finding that Ramon violated section 186.22(b)(1) is vacated. The conviction for violation of section 12031(a)(2)(F) is reversed. The remaining convictions are affirmed. The matter is remanded to the trial court for resentencing.

CORNELL, J.

WE CONCUR:

LEVY, Acting P.J.

GOMES, J.

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

J.C. PENNEY COMPANY et al.,

Petitioners,

v.

WORKERS’ COMPENSATION APPEALS BOARD and JAMES EDWARDS,

Respondents.

C059760

(WCAB Nos.

SAC338759, SAC360384)

ORIGINAL PROCEEDINGS: Petition for Writ of Review. Joseph S. Samuel, Workers’ Compensation Administrative Law Judge. Decision and award annulled and remanded with directions.

Mullen & Filippi, Gregory T. Jones for Petitioners J.C. Penney Company and American Home Assurance Company.

Neil P. Sullivan for Respondent Workers’ Compensation Appeals Board.

Metzinger and Associates, Ronald M. Metzinger for Respondent James Edwards.

Petitioners J.C. Penney Company and its insurer American Home Assurance Company, adjusted by AIG Claim Services, (collectively J.C. Penney) contend that respondent the Workers’ Compensation Appeals Board (WCAB) erred in limiting a credit for overpayment of temporary disability indemnity. Entitlement to temporary disability indemnity ends when the condition of the injured worker becomes permanent and stationary. J.C. Penney sought the credit against the permanent disability indemnity award of injured worker respondent James Edwards. J.C. Penney claimed that his condition became permanent and stationary some 19 months before it stopped paying temporary disability indemnity.

The WCAB limited the requested credit on the ground that J.C. Penney failed to object, under Labor Code section 4062, to the ongoing determinations of Edwards’s treating physicians that he remained temporarily totally disabled. J.C. Penney argues that the WCAB erred because the treating physicians’ determinations were based on an incorrect legal theory and do not afford substantial evidence of ongoing temporary disability. The argument is unpersuasive, but the WCAB’s rationale does not support the amount of the limitation of the credit. We shall annul the award and remand for further proceedings to determine the appropriate credit.

FACTUAL AND PROCEDURAL BACKGROUND

On July 23, 2003, Edwards was on a ladder painting a J.C. Penney store in Sacramento. He fell and was injured. He suffers chronic pain in his left elbow, lower back, and right knee and leg.

Edwards’s treating physician after December of 2003 was Dr. Connie Kimble. She referred him to Dr. David Coward who performed knee surgery on February 9, 2005. She also referred him to Dr. Praveen Prasad, a neurosurgeon. On October 24, 2005, Dr. Prasad recommended a back fusion surgery. On December 20, 2005, the initial request for authorization of the surgery was denied in a utilization review under section 4610.

Edwards was then referred to Dr. Laura Anderson, a neurosurgeon, for a second opinion on the surgery recommended by Dr. Prasad. On February 14, 2006, Dr. Anderson advised against the recommended fusion surgery.

On April 28, 2006, Edwards again saw Dr. Kimble, who noted that his use of pain medication had increased. She reported: “Hopefully, this is short-term in that his surgery will be approved, and his pain level will be reduced.” Edwards saw Dr. Kimble again on May 24, 2006. She noted for the first time in her report for this visit that he had met with Dr. Anderson who had recommended against the fusion surgery. Dr. Kimble recommended an evaluation for an implanted pump to deliver pain medicine to the spinal cord. Her progress report asserts that Edwards remains: “Temporarily totally disabled through June 2006.” There are no subsequent progress reports from treating physicians in the record until April of 2007.

At some point prior to February 5, 2007, the parties apparently agreed to a medical examination (see § 4062.2) by Dr. Peter Mandell concerning contested medical issues. On that date Dr. Mandell examined Edwards and prepared an evaluation report. In pertinent part, Dr. Mandell opined that Edwards’s condition was permanent and stationary and “probably became so six months after a RIGHT knee arthroscopy which he had on 2/9/05.”

Edwards had been receiving temporary disability indemnity payments from the time of his injury. These payments ended March 14, 2007.

Edwards’s case came on for hearing before a workers’ compensation administrative law judge (ALJ) on January 22, 2008. Edwards testified concerning his medical history and the nature of his current condition. No inquiry was made about the decision on back surgery or the claimed overpayment.

The ALJ rendered a decision and award on April 18, 2008. He found that the date Edwards’s medical condition became permanent and stationary was the day he was examined by Dr. Mandell, reasoning as follows:

“Applicant had been evaluated by Dr. Mandell as an agreed medical examiner February 5, 2007. As noted, Dr. Mandell felt that he was permanent and stationary. . . .

“An injured worker is entitled to temporary disability indemnity while he is in his healing period. (Bstandig v. WCAB (1977) 42 Cal.Comp.Cases 114, 118.) Applicant was clearly in his healing period while he was awaiting authorization for surgery proposed by Dr. Prasad. After that surgery was not authorized, Dr. Kimble indicated on a recurring basis that he continued to be temporarily disabled. . . .

“If J.C. Penney disputed Edwards’s temporary disability status at any time, it could have objected to Dr. Kimble’s findings under Labor Code section 4062. Although I can reasonably infer there was an objection at some point in time and that Dr. Mandell was agreed upon to resolve that issue (and, apparently, other issues) it is contrary to the spirit of section 4062 to permit a retrospective determination of a permanent and stationary date when there was substantial evidence to support ongoing temporary disability.

“Based on the record presented to me Dr. Mandell’s implied opinion that Edwards was permanent and stationary the date he saw him supports a determination that temporary disability ceased at that time, but not earlier.”

In an amended award and order of April 30, 2008, the ALJ found that there had been an overpayment of temporary disability indemnity for the period from “February 6, 2007, through March 14, 2007.”

J.C. Penney filed a petition for reconsideration on May 16, 2008. J.C. Penney contended that there was no substantial evidence to support the finding that Edwards’s medical condition achieved permanent and stationary status on the date he was examined by Dr. Mandell. J.C. Penney argued the only evidence on permanent and stationary status was Dr. Mandell’s opinion that the date was August 9, 2005. J.C. Penney made no mention of the remarks of the ALJ about “the spirit of section 4062.”

The WCAB, in pertinent part, affirmed the award and order, adopting and incorporating the reasoning of the ALJ as related above. J.C. Penney filed its petition for writ of review and we issued the writ on October 16, 2008.

DISCUSSION

I. Section 4062 Bars Part of the Overpayment Credit J.C. Penney Sought

Neither J.C. Penney nor Edwards in their initial memoranda in this court addressed the reasoning that retrospective determination of a permanent and stationary date would be inconsistent with “the spirit of section 4062.” We asked them to address this in supplemental briefs.

J.C. Penney contends that the WCAB erred in basing denial of the requested credit on failure to object under section 4062. J.C. Penney notes that the ALJ’s remarks about section 4062 barring a retrospective determination of a permanent and stationary date included the phrase “when there is substantial evidence to support ongoing temporary disability.” J.C. Penney argues that the award cannot be upheld under this logic because Dr. Kimble’s ongoing findings do not constitute “substantial evidence to support ongoing temporary disability.”

However, the denial of the credit under section 4062 does not require a finding of substantial evidence of ongoing temporary disability and the WCAB did not err in basing a denial of the requested credit on that statute.

The statutory duty to pay temporary disability compensation continues during the period in which an injured worker, while unable to work, is undergoing medical diagnostic procedure and treatment for an industrial injury. (Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159, 168.) The duty ends when the worker is able to return to work or when his or her medical condition becomes permanent and stationary. (E.g., Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1291-1292.) “A disability is considered permanent when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.” (Cal. Code Regs., tit. 8, § 10152; id., § 9785, subd. (a)(8).) This is so even though further medical treatment may be required to relieve the effects of the injury. (See, e.g., 2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation, § 287, pp. 895-897.) Thus, “temporarily disabled” and “permanent and stationary” are contradictory propositions.

Edwards’s condition became permanent and stationary when it was unlikely to change substantially in the next year with or without medical treatment, even though he continued to require medical treatments to alleviate pain caused by his industrial accident. Accordingly, a medical opinion that he continued to be temporarily totally disabled would be legally untenable unless there was evidence showing some likelihood of substantial change in his condition within the year, e.g., through medical treatment such as back surgery. The medical determination by Dr. Kimble that Edwards was temporarily totally disabled, i.e., his condition was not yet permanent and stationary, is not substantial evidence of ongoing temporary disability without a foundation of some likelihood of substantial change in the ensuing year.

However, the WCAB’s denial of the credit under section 4062 does not rest on a finding that Dr. Kimble’s opinion of ongoing temporary total disability is substantial evidence that Edwards’s condition was not yet permanent and stationary. If that were the import of the WCAB’s reasoning, no purpose would be served by the reference to section 4062. The ALJ would have found ongoing temporary disability directly, based on Dr. Kimble’s opinion.

It is only because Dr. Mandell’s reasoning rebutted the apparent view of Dr. Kimble, that treatment to manage pain alone sufficed to warrant temporary disability, that there was any occasion to invoke “the spirit of section 4062.” The WCAB’s decision to deny a full credit for overpayment necessarily rests on the theory that the policy of Labor Code section 4062 bars recovery of an overpayment, rather than a theory that there was no overpayment. The phrase “when there is substantial evidence to support ongoing temporary disability” is superfluous, but “superfluity does not vitiate.” (Civ. Code, § 3537.)

The rationale of the award turns on public policy manifest in section 4062. The statute provides, in pertinent part, “If the employer objects to a medical determination made by the treating physician concerning any medical issues . . . , the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the report if the employee is represented by an attorney . . . . These time limits may be extended for good cause or by mutual agreement.” (§ 4062, subd. (a).)

A determination by a treating physician that an injured worker continues to be temporarily totally disabled is a medical determination subject to the objection requirement of Labor Code section 4062. (See Cal. Code Regs., tit. 8, § 9785.) The question is: What is the effect of failing to object within the “time limits” of that statute?

The requirement for an objection under section 4062 is stated in mandatory language: “the objecting party shall notify the other party in writing.” The ordinary meaning of a mandatory time limit is that once the prescribed time has passed the action subject to the time limit may no longer be taken. When J.C. Penney failed to object to a medical determination of temporary total disability by Edwards’s treating physician within the time limit provided in section 4062, it lost the right to object to that determination in the future.

The evident purpose of the time limits in section 4062 is to induce both employer and employee to declare promptly medical determination disputes and expeditiously resolve them through the prescribed mechanisms. This purpose cannot be attained if a party such as J.C. Penney can fail to object in a timely manner and nonetheless thereafter tender a claim that contradicts a medical determination subject to the objection requirement of the statute. If either employer or employee fails to raise a dispute about a medical determination within the ambit of section 4062 within the prescribed time, they may not attack that determination thereafter.

Section 4062 permits extension of the time periods “for good cause.” (§ 4062, subd. (a).) However, J.C. Penney offered no claim of good cause for failure to object in the WCAB proceedings. We will not speculate about the nature of good cause in the abstract. It suffices to say that ignorance of a legal theory of rebuttal of a medical determination is not good cause for failure to object. If that were allowed, the exception would swallow the rule.

We find the core reasoning of the WCAB correct. “It is contrary to the spirit of section 4062 to permit a retrospective determination of a permanent and stationary date” when to do so would be to allow a belated objection to a medical determination by the treating physician.

However, that does not justify extending the permanent and stationary date until the time that the agreed medical examiner rendered an opinion that the worker’s condition was permanent and stationary. The limitation under section 4062 is to contradiction of the unchallenged medical determination of the treating physician. The last such determination before the agreed medical examiner process was invoked is Dr. Kimble’s report that Edwards was “temporarily totally disabled through June 2006.” Accordingly, the reach of the statute extends only that far. Insofar as the denial of J.C. Penney’s requested credit is predicated on section 4062, it cannot be justified beyond that point on this record.

II. The Record Does Not Support an Equitable Bar to the Overpayment Credit

Edwards contends that an award denying any credit prior to Dr. Mandell’s finding on February 5, 2007, should be upheld on an estoppel rationale discussed in Maples v. Workers’ Comp. Appeals Bd. (1980) 111 Cal.App.3d 827 (Maples). J.C. Penney replies that the factual record in this case does not support an estoppel. J.C. Penney has the more persuasive position.

In Maples the court held that the WCAB erred in permitting the insurance carrier for the employer to claim an overpayment of temporary disability indemnity payments against petitioner’s permanent disability award. (Maples, supra, 111 Cal.App.3d at pp. 829-830.) The carrier had received a medical evaluation opinion in November of 1977 that found the employee to be permanent and stationary. (Id. at p. 830.) However, the first notice the carrier gave the employee of the opinion was in a supplemental medical report from the same doctor, filed and served in September 1978, reaffirming the permanent and stationary status opinion as of the date of the prior examination and report. (Ibid.) The carrier stopped paying temporary disability indemnity as of August 9, 1978, but did not immediately advise the employee of the reason for the termination. (Maples, at pp. 830-831.)

The Maples opinion held the carrier estopped, as a matter of law, from claiming that temporary disability ended prior to the employee’s receipt of the report containing the opinion his condition was permanent and stationary. (Maples, supra, 111 Cal.App.3d at p. 839.) The opinion notes that the carrier had violated provisions of the Labor Code and WCAB rules in failing to timely file with the appeals board and serve on the employee the original medical report and in failing to file a petition to terminate temporary disability indemnity within 10 days of the cessation of payments. (Id. at pp. 834-835.) The full disclosure of medical reports as required by WCAB rules is essential to the expeditious determination of the controversies submitted to the appeals board and failure to disclose is prejudicial to the injured worker. This prejudice is, inter alia, that the allowance of credit for a temporary disability overpayment can be disruptive of the purpose of permanent disability indemnity, delay receipt by the injured worker of additional workers’ compensation benefits and his return to employment, and prevent the worker’s doctor from recommending further medical or surgical procedures. (Id. at pp. 836-837.)

J.C. Penney correctly argues that the Maples estoppel theory is inapplicable. Estoppel requires, inter alia, a false representation or concealment of material facts made with knowledge of the facts. (See, e.g., 13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity, § 191, pp. 527-528.) In Maples the employer was aware of and improperly suppressed a medical evaluation opinion that the employee was permanent and stationary. However, there is no evidence in this case that J.C. Penney was actually aware, or was even in a superior position to have known, that Edwards’s condition had become permanent and stationary before Dr. Mandell’s report.

Estoppel is not the only equitable principle the WCAB may use in the exercise of discretion to deny a credit. (See Maples, supra, 111 Cal.App.3d at pp. 837-838.) The WCAB generally has some degree of discretion to grant or deny credit for overpayments under section 4909. (See, e.g., Genlyte Group, LLC v. Workers’ Comp. Appeals Bd. (2008) 158 Cal.App.4th 705, 724; Herrera v. Workmen’s Comp. App. Bd. (1969) 71 Cal.2d 254, 258.) However, we cannot sustain the denial of a credit beyond the limit based on section 4062 on equitable grounds. The only ground asserted in the WCAB award is section 4062. The WCAB did not otherwise assess the relative equities in either recognizing or denying full or partial credit.

DISPOSITION

The decision and award of the WCAB is annulled and the matter remanded for further proceedings to determine the amount of the credit to J.C. Penney for overpayment of temporary disability indemnity in accord with the views expressed in this opinion. The parties are to bear their own costs before this court. (Cal. Rules of Court, rule 8.493(a)(1)(B).) (CERTIFIED FOR PUBLICATION.)

BUTZ , J.

We concur:

NICHOLSON , Acting P. J.

HULL , J.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

PAUL FONTAINE,

Petitioner,

v.

THE SUPERIOR COURT OF

SANTA CLARA COUNTY,

Respondent;

CASHCALL, INC. et al.,

Real Parties in Interest.

H033811

(Santa Clara County

Super. Ct. No. CV 113767)

I. INTRODUCTION

Petitioner Paul Fontaine obtained a loan for personal, family or household use from real party in interest CashCall, Inc. (hereafter CashCall). After CashCall attempted to collect the debt, Fontaine filed a complaint in Santa Clara County Superior Court alleging that the collection methods used by CashCall and four of its employees violated the Rosenthal Fair Debt Collections Practices Act (Civ. Code, § 1788 et seq.). CashCall responded by bringing a motion to transfer the action to Orange County Superior Court on the ground that individual defendant Richard Vargas, a resident of Orange County, had requested that the case be tried there. The trial court granted the motion and ordered the action transferred to Orange County Superior Court.

Fontaine seeks extraordinary relief from the trial court’s order, arguing that venue is proper in Santa Clara County pursuant to Code of Civil Procedure section 395, subdivision (b) because he resides in Santa Clara County and the action arises from a consumer loan. For the reasons stated below, we agree and therefore we will issue a peremptory writ in the first instance vacating the trial court’s order.

II. FACTUAL AND PROCEDURAL BACKGROUND

In his complaint filed on May 30, 2008, Fontaine alleges that defendant CashCall and its employees, individual defendants Richard Vargas, James Ryan, Ronald Bey, and Rachel Behn, “engaged in abusive and intrusive conduct in an attempt to collect a debt.” Fontaine became indebted when he “incurred a financial obligation” to CashCall that was “primarily incurred for personal, family or household purposes . . . .” He asserts that CashCall repeatedly and continuously made telephone calls and sent collection letters that were intended to annoy, abuse and harass him. Based on these and other allegations, the complaint includes causes of action for violation of the Rosenthal Fair Debt Collections Practices Act (Civ. Code § 1788 et seq.), invasion of privacy, “Tort-in-se,” negligent infliction of emotional distress, negligence, and violation of the Telephone Consumer Protection Act (47 U.S.C. § 227, subd. (b)(1)(A)).

Defendants CashCall, Vargas, and Bey subsequently brought a motion to transfer the action to Orange County Superior Court. They argued that venue was proper in Orange County because the general venue rule set forth in section 395, subdivision (a) provides that a defendant is entitled to have an action tried in the county of his or her residence; Vargas was a resident of Orange County and requested that the action be transferred there; and there was no applicable exception to the general venue rule.

Fontaine opposed the motion on the ground that venue was proper in Santa Clara County under two exceptions to the general venue rule. First, Fontaine claimed that he had suffered physical and emotional injury in Santa Clara County due to defendants’ unlawful debt collection activities, and therefore the action could be tried in Santa Clara County pursuant to section 395, subdivision (a). Second, Fontaine asserted that venue was proper in Santa Clara County under section 395, subdivision (b) because the action arose from a loan that he had obtained primarily for personal, family or household purposes and he was a resident of Santa Clara County at the time the action was filed. Fontaine filed a declaration in support of his opposition, in which he also stated that he was financially unable to travel to the location of the Orange County Superior Court.

At the hearing on the motion to transfer, held on November 25, 2008, the trial court granted the motion. The court rejected both of Fontaine’s venue arguments, determining that the action was not a physical injury action for purposes of venue and that section 395, subdivision (b) did not apply because Fontaine’s action was not a collection action. The trial court’s order transferring the action to Orange County Superior Court, upon plaintiff’s payment of court costs, was entered on December 15, 2008. Defendants served a notice of entry of order on January 7, 2009.

Fontaine filed a petition for writ of mandamus in this court on January 28, 2009, in which he sought extraordinary relief from the trial court’s order. On March 17, 2009, we issued a Palma notice (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180), advising the parties that this court was considering issuing a peremptory writ of mandate in the first instance, requesting points and authorities in opposition to the petition, and allowing petitioner to reply. Having received opposition to the petition for writ of mandamus and petitioner’s reply, we turn to the merits of the writ petition.

III. DISCUSSION

Fontaine argues that the trial court erroneously ruled that section 395, subdivision (b) does not apply to an action in which a consumer sues a debt collector. He explains that section 395, subdivision (b) expressly provides that where, as here, the action arises from the extension of credit for personal, family, or household use, venue is proper where the borrower resided at the time the action was commenced.

Real parties in interest (hereafter defendants) maintain that Fontaine’s interpretation of section 395, subdivision (b) is wrong. They believe that section 395, subdivision (b) does not apply to this action because it is not a collection action against Fontaine. In their words, “it is clear that section 395(b) is a shield for consumer defendants who have been sued in certain collection actions; it is not a sword for consumer plaintiffs who seek to assert claims for alleged unfair debt collection activities against individual defendants in distant forums.” Alternatively, defendants assert that the venue exception provided by section 395, subdivision (b) does not apply here because Fontaine’s action does not arise from the provision of a consumer loan by individual defendant Vargas.

We will begin our analysis with an overview of the procedure for a motion to transfer an action.

A. Motion to Transfer an Action

The court may, on timely motion, order transfer of an action “when the court designated in the complaint is not the proper court.” (§§ 397, subd. (a), 396a, subd. (b).) The moving party must overcome the presumption that the plaintiff has selected the proper venue. (Mitchell v. Superior Court (1986) 186 Cal.App.3d 1040, 1046.) Thus, “it is the moving defendant’s burden to demonstrate that the plaintiff’s venue selection is not proper under any of the statutory grounds.” (Ibid.) In opposing the motion to change venue, “the plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint’s theory of the type of action but amplifying the allegations relied upon for venue.” (Lebastchi v. Superior Court (1995) 33 Cal.App.4th 1465, 1469)

Pursuant to section 400, a party aggrieved by an order granting or denying a motion to change venue may petition for a writ of mandate requiring trial of the case in the proper court. (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 927, fn. 4.) The standard of review for an order granting or denying a motion for a change of venue is abuse of discretion. (State Bd. of Equalization v. Superior Court (2006) 138 Cal.App.4th 951, 954.)

B. The Section 395, Subdivision (b) Venue Exception

Pursuant to section 395, subdivision (a), the general venue rule is that “the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 483.) Additionally, “when a plaintiff brings an action against several defendants, both individual and corporate, in a county in which none of the defendants reside, an individual defendant has the right to change venue to the county of his or her residence.” (Id. at pp. 483-484, fn. 6.) For venue to be proper in a county other than the county in which a defendant resides, the action must fall within a statutory exception. (California State Parks Foundation v. Superior Court (2007) 150 Cal.App.4th 826, 833.)

Fontaine does not dispute defendants’ assertions that none of them resides in Santa Clara County and that individual defendant Vargas resides in Orange County. However, he argues in his writ petition that a statutory venue exception authorizes trial of this action in Santa Clara County Superior Court: the section 395, subdivision (b) provision for venue in actions arising from certain consumer obligations.

Section 395, subdivision (b) provides in pertinent part that “in an action arising from an offer or provision of goods, services, loans or extensions of credit intended primarily for personal, family or household use, other than an obligation

described in Section 1812.10 or Section 2984.4 of the Civil Code . . . the superior court in the county where the buyer or lessee in fact signed the contract, where the buyer or lessee resided at the time the contract was entered into, or where the buyer or lessee resides at the commencement of an action is the proper court for the trial of the action.”

To determine the proper application of the statutory venue exception provided by section 395, subdivision (b), we apply the following well established principles of statutory interpretation. “In statutory construction cases, our fundamental task is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. Citation.” (Estate of Griswold (2001) 25 Cal.4th 904, 910.) “ ‘We begin by examining the statutory language, giving the words their usual and ordinary meaning.’ Citation.” (Id. at p. 911.) “If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs. Citations.” (Ibid.) “If there is ambiguity, however, we may then look to extrinsic sources, including the ostensible objects to be achieved and the legislative history. Citation.” (Ibid.) “In such cases, we ‘ “ ‘ select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ ” ’ Citation.” (Id. at p. 911.)

We find that the plain language of section 395, subdivision (b) provides that an action arising from certain consumer transactions, including a loan or extension of credit intended primarily for personal, family or household use, must be tried in the superior court of the county where either (1) the buyer or lessee signed the contract; (2) the buyer or lessee resided at the time he or she entered into the contract; or (3) the buyer or lessee resided at the commencement of an action. There is nothing in the language of section 395, subdivision (b) that limits its application to collection actions brought against a consumer defendant. Therefore, whether the action is brought against a consumer defendant or by a consumer plaintiff, the venue provisions of section 395, subdivision (b) apply as long as the action arises from a consumer transaction specified in the statute.

We are not convinced by defendants’ argument that the venue provision of section 395, subdivision (b) is properly interpreted to apply only to actions against a consumer defendant, or, alternatively, does not apply where the consumer is the plaintiff and one of the defendants is an individual. Even assuming that there is some ambiguity regarding the scope of section 395, subdivision (b), we believe that the legislative history supports our plain language interpretation.

As noted in the pertinent California Law Revision Commission comment, section 395, subdivision (b) was amended in 1991. The 1991 amendments substituted “ ‘arising from an offer or provision of’ for ‘founded upon an obligation of the defendant for’; inserted the provision relating to actions arising from an unsolicited telephone call, and substituted ‘buyer or lessee’ for ‘defendant’ in three places . . . .” (Cal. Law Revision Com. com., 14A West’s Ann. Code Civ. Proc. (2004 ed.) foll. § 395, p. 74.)

The legislative history further reveals that the 1991 amendments to section 395, subdivision (b) were intended to provide that an action arising from a consumer credit transaction would be venued either in the county where the consumer signed the contract or the county where the consumer resides, consistent with the venue provisions of other consumer protection laws. The Senate Committee report pertaining to the 1991 amendments noted, “General law provides that the proper county for the trial of actions (i.e., venue) based upon an obligation of a defendant for loans or extension of credit intended primarily for personal family or household use is the county in where sic the defendant signed the contract or resided when the contract was entered or the action was filed. However, consumer actions under the Unruh Act § 1801 et seq. or the Rees-Levering Motor Vehicle Sales and Financing Act Civ.Code are excluded from the general venue provision. Instead, the venue for a consumer action under these acts is either the county where the contract was signed or the county of the consumer’s residence. This bill would: . . . Provide that the county or judicial district in which a buyer or seller signed a contract or in which the buyer or lessee resides, would be the proper court to bring an action arising from either (a) a ‘consumer transaction’ or (b) a transaction conducted through unsolicited telephone calls. (A consumer transaction is an offer or provision of goods, services, loans or extension of credit intended primarily for personal, family or household use.)” (Sen. Com. on Judiciary, Rep. on Assem. Bill No. 1889 (1991-1992 Reg. Sess.) as amended June 13, 1991, p. 2.) (Underscore in original.)

The 1991 amendments to section 395, subdivision (b) were sponsored by the California Department of Consumer Affairs. (Sen. Com. on Judiciary, Rep. on Assem. Bill No. 1889, supra, p. 3.) “The department argues that the better policy is to permit venue in the county of the residence of the injured consumer-plaintiff. This policy, proponents point out, is already established for consumer actions brought under the Unruh Act and the Rees-Levering Act.” (Ibid.)

Thus, as intended by the Legislature, section 395, subdivision (b) provides a statutory exception to the general venue rule, by authorizing venue in the county where a consumer plaintiff resides at the commencement of his or her action arising from a consumer transaction as specified in the statute. Because Fontaine’s action arises from a loan that he obtained primarily for personal, family or household use, which is a consumer transaction specified in section 395, subdivision (b), and Fontaine resided in Santa Clara County at the time his action commenced, venue is proper in Santa Clara County Superior Court.

The decisions on which defendants rely, Barquis v. Merchant’s Collection Assn. (1972) 7 Cal.3d 94 (Barquis) and Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377 (Yu), do not support their contention that the application of section 395, subdivision (b) is limited to an action against a consumer defendant.

Describing its earlier decision in Barquis, the California Supreme Court has stated, “In Barquis, the plaintiffs alleged the defendant collection agency violated former section 396a by ‘filing actions in improper counties, pursuant to statutorily inadequate complaints, for the purpose of impairing its adversaries’ ability to defend these actions, and with the intent, and effect, of obtaining an increased number of default judgments.’ Citation. Due to a statutory exception, the general rule that failure to move for a change of venue constitutes a waiver of any venue defects was inapplicable. Citation. We nevertheless concluded that ‘when a trial court erroneously fails to dismiss or transfer the action and the defendant does not raise a timely objection to such error, . . . a final judgment rendered on an inadequate complaint is not void for lack of jurisdiction and thus cannot be set aside at any time in the future.’ Citation.” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 662.) Thus, the decision in Barquis does not involve the interpretation or application of section 395, subdivision (b).

While the decision in Yu, supra, 69 Cal.App.4th 1377 does concern section 395, subdivision (b), it is also inapposite. The plaintiffs in Yu brought a class action against defendant Signet Bank/Virginia that included a cause of action based on section 395, subdivision (b), in which they asserted that the bank had violated that venue provision by bringing collection actions against them in Virginia. (Yu, supra, 69 Cal.App.4th at p. 1395.) The appellate court determined that summary adjudication of the cause of action was properly granted because section 395, subdivision (b) does not apply to conduct outside California. (Id. at p. 1397.) Thus, the decision in Yu did not address the application of section 395, subdivision (b) to conduct in California.

Finally, we find no merit in defendants’ alternative argument that section 395, subdivision (b) does not apply to this action because the action does not arise from individual defendant Vargas’s provision of a loan. There is nothing in either the language of section 395, subdivision (b) or its legislative history to indicate that this venue exception does not apply where one of the defendants is an individual.

We also disagree with defendants’ narrow construction of the phrase “arising from” in section 395, subdivision (b). That section applies (with two exceptions not relevant here) to “an action arising from an offer or provision of goods, services, loans or extensions of credit intended primarily for personal, family or household use . . . .” (§ 395, subd. (b).) The word “arising” is defined as “to originate from a source.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 62; Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122 courts appropriately refer to the dictionary definition to determine the ordinary meaning of a word in a statute.) As alleged in his complaint, the source of Fontaine’s action is the loan that he obtained from CashCall, which led to the collection efforts by the individual defendants that Fontaine claims were unlawful. As we have determined, Fontaine’s action therefore arises from a consumer transaction specified in section 395, subdivision (b), and, under that statutory venue exception, venue is proper in Santa Clara County Superior Court.

For these reasons, we conclude that venue is proper in Santa Clara County Superior Court and the trial court abused its discretion in ordering transfer of the action to Orange County Superior Court. As discussed below, we also conclude that a peremptory writ in the first instance is appropriate to correct the trial court’s error expeditiously.

C. Peremptory Writ in the First Instance

In limited situations, an appellate court may issue a peremptory writ in the first instance, without issuance of an alternative writ or order to show cause, and without providing an opportunity for oral argument. (§ 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1252-1253.) “A court may issue a peremptory writ in the first instance ‘ “only when petitioner’s entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue—for example, when such entitlement is conceded or when there has been clear error under well-settled principles of law and undisputed facts—or where there is an unusual urgency requiring acceleration of the normal process. . . .” Citation.’ ” (Id. at p. 1241.)

However, section 1088 “ ‘ “requires, at a minimum, that a peremptory writ of mandate or prohibition not issue in the first instance unless the parties adversely affected by the writ have received notice, from the petitioner or from the court, that the issuance of such a writ in the first instance is being sought or considered. In addition, an appellate court, absent exceptional circumstances, should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected . . . .” ’ ” (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1240.)

All procedural requirements for issuance of the writ in the first instance have been followed in the present case. We notified the parties that we were considering issuance of a peremptory writ of mandate in the first instance, and the defendants filed a written response. The applicable principles of the law of venue are well established, the relevant facts are undisputed, and the petitioner’s entitlement to relief is so obvious that plenary consideration of the issues is unnecessary. (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1241.) Accordingly, we will grant the petition for writ of mandate in the first instance.

IV. DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to vacate the order of December 15, 2008, granting the motion to transfer the action to Orange County Superior Court and to enter a new order denying the motion. Costs in this original proceeding are awarded to petitioner.

_______________________________________________________

BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

MCADAMS, J.

Filed 7/7/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

PAUL FONTAINE,

Petitioner,

v.

THE SUPERIOR COURT OF

SANTA CLARA COUNTY,

Respondent;

CASHCALL, INC. et al.,

Real Parties in Interest. H033811

(Santa Clara County

Super. Ct. No. CV 113767)

ORDER FOR PUBLICATION

Petitioner, Paul Fontaine, has requested that our opinion, filed on June 10, 2009, be certified for publication. It appears that our opinion meets the standards set forth in California Rules of Court, rules 8.1105(c). The request is GRANTED. The opinion is ordered published in the Official Reports.

_________________________________________

BAMATTRE-MANOUKIAN, ACTING P.J.

__________________________________________

MIHARA, J.

_______________________________________

MCADAMS, J.

Trial Court: Santa Clara County Superior Court
Superior Court No.: CV113767

Trial Judge: The Honorable Mary Jo Levinger

Attorney for Petitioner:

PAUL FONTAINE Frederick William Schwinn

Raeon R. Roulston

Consumer Law Center, Inc.

Ronald Wilcox, Esq.

Attorneys for Respondent:

Superior Court of Santa Clara County NO APPEARANCE

Attorney for Real Parties in Interest: CASHCALL, INC. et al., Michael Raymond Williams

Finlayson, Augustini & Williams, LLP

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DERAIN CLARK et al.,

Plaintiffs and Respondents,

v.

AMERICAN RESIDENTIAL SERVICES LLC et al.,

Defendants and Respondents;

____________________

JERRSON NALUZ et al.,

Objectors and Appellants.

B203476

(Los Angeles County

Super. Ct. No. BC332632)

APPEAL from an order of the Superior Court for the County of Los Angeles. Mark V. Mooney, Judge. Reversed and remanded.

Law Office of Randall Crane, Randall C. Crane and Leonard Emma for Objectors and Appellants.

Law Office of Kevin T. Barnes, Kevin T. Barnes and Gregg Lander; Law Office of Joseph Antonelli, Joseph Antonelli and Janelle C. Carney, for Plaintiffs and Respondents.

Winston & Strawn, Lee T. Paterson, Amanda C. Sommerfeld and Emilie C. Woodhead for Defendants and Respondents.

SUMMARY

Derain Clark and Maxine Gaines filed a class action lawsuit against American Residential Services LLC (ARS), a purveyor of plumbing and related services, seeking damages and penalties for allegedly unpaid minimum and overtime wages, failure to provide meal and rest periods, and other Labor Code violations and unfair business practices. Eighteen months later, after a one-day mediation before a respected mediator, the parties agreed to settle the matter for $2 million, out of which Clark and Gaines would receive $25,000 each, and the other 2,360 class members would receive an average payment of $561.44. Notice of the proposed settlement elicited objections from 20 putative class members, who alleged that they worked at least two hours of unpaid overtime every workday, that they would be compensated for only about 1% of the total value of their claims, and that no evidence was presented to the court to justify the settlement. After a hearing, the trial court gave final approval to the settlement. The objectors appealed.

We conclude the order approving the settlement must be vacated because the trial court lacked sufficient information to make an informed evaluation of the fairness of the settlement. This was due to the court’s apparent reliance on counsel’s evaluation of the class’s overtime claim as having “absolutely no” value, without regard to the objectors’ claim that counsel’s evaluation was based on an allegedly “staggering mistake of law.” While the court need not determine the ultimate legal merit of a claim, it is obliged to determine, at a minimum, whether a legitimate controversy exists on a legal point, so that it has some basis for assessing whether the parties’ evaluation of the case is within the “ballpark” of reasonableness. We further conclude that the court abused its discretion in finding that the $25,000 enhancements for Clark and Gaines were fair and reasonable, and that it erred in awarding costs greater than the maximum amount specified in the notice given to the class.

FACTUAL AND PROCEDURAL BACKGROUND

On April 28, 2005, Clark and Gaines (collectively, Clark) filed their class action complaint against ARS and related defendants. Clark asserted causes of action for unpaid minimum and overtime wages, failure to provide meal and rest periods, failure to fully reimburse employees for business expenses, illegal uniform deductions, failure to timely furnish accurate itemized wage statements, violations of Labor Code section 203 (penalties for late payment of wages to terminated employees), and unfair business practices. The complaint involved two types of workers: (1) service technicians (Clark’s job), paid on a commissioned basis or hourly wage, whichever was higher, and (2) hourly-paid positions, including dispatchers and customer service representatives (Gaines’s job), paid on an hourly basis.

ARS filed an answer on June 16, 2005.

In December 2005, ARS removed the case to federal court, but in February 2006, Clark’s motion to remand was granted, the federal court finding ARS did not meet its burden of proving that the amount in controversy exceeded $5 million (as required under the Class Action Fairness Act of 2005 (28 U.S.C. § 1332(d)(2)). After additional discovery, including depositions of Clark and Gaines in May 2006, ARS filed another notice of removal on August 10, 2006. ARS, with a supporting expert declaration, asserted that, assuming the allegations in the complaint and the deposition testimony of Clark and Gaines were true (which it did solely for purposes of the removal motion), the amount in controversy was between $21.7 million and $32.8 million. On December 20, 2006, the federal court again remanded the case to the Superior Court, finding that, because ARS did not identify how many of the putative class members worked under conditions similar to the named plaintiffs, and its expert’s calculations were based entirely on the assumption that the plaintiffs’ damages were the same or similar to every class member’s damages, the calculations were “fatally vague.”

Meanwhile, on October 18, 2006, a one-day mediation was held before a well-respected mediator with significant experience in wage and hour class action suits, who negotiated the principal terms of a settlement, with a more formal agreement to be memorialized in the future; ARS agreed to pay a total amount of $2 million, inclusive of attorney fees and costs.

Clark filed a motion for preliminary approval of the class action settlement, presenting the court with a proposed stipulated settlement agreement. The proposed settlement called for a class of all persons who were employed by ARS any time from April 28, 2001 through December 31, 2006 as service technicians, customer service representatives and/or dispatchers. Clark’s motion stated the settlement would provide a payment of approximately $6.43 per workweek for each class member submitting a claim, attorney fees of $600,000, costs of up to $40,000, and class representative enhancements of $50,000 ($25,000 each). The evidentiary support for the settlement consisted of the declaration of plaintiffs’ counsel, Kevin Barnes, who stated:

“The settlement for each participating Class Member is fair, reasonable, and adequate given the inherent risk, cost and length of litigation. The amount recoverable for each Class Member . . . is fair and reasonable based in a review of all objective evidence. The parties’ assessment of the matter is based on extensive research for and during the litigation, written discovery, Depositions of the Plaintiff Class Representatives, and after consultation with an economist regarding potential damage exposure.”

Counsel believed the $25,000 enhancements for Clark and Gaines were also fair and reasonable, because they initially informed counsel of ARS’s illegal policies and procedures; spent several hours in consultation with counsel’s office; remained in contact with counsel’s office throughout the litigation and settlement process; reviewed thousands of pages of documents for the mediation; Gaines attended the mediation, which lasted a full day; and Clark and Gaines had their depositions taken for a full day. In addition, they assumed the financial risk of paying costs “of tens of thousands of dollars” if ARS prevailed at trial.

On May 8, 2007, the court gave preliminary approval to the class action settlement, and on May 22, 2007, notice of pendency of the settlement was mailed to 2,821 potential class members.

A month later, Clark moved for final approval of the settlement, arguing the settlement agreement was entitled to a presumption of fairness where the agreement is reached through arm’s length bargaining; investigation and discovery are sufficient to allow counsel and the court to act intelligently; counsel is experienced in similar litigation; and the percentage of objectors is small (citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1802 (Dunk)), all of which conditions were present. Only 23 of the 2,821 class members opted out.

In support of the motion for final approval, Clark presented a declaration from class counsel Barnes who, on the issue of fairness, stated that:

“Class Counsel are experienced and qualified to evaluate the Class claims and viability of the defenses. The recovery for each Class Member in the present is very generous on account of the close proximity of the Class Members’ recovery to what they would have received had they received compensation for all hours worked. This settlement is fair, adequate and reasonable and in the best interests of the Class.”

As to the $25,000 enhancements for Clark and Gaines, Barnes repeated the information given in the request for preliminary approval of the settlement, and noted as well that Clark and Gaines agreed to a complete release of all claims (wage related or not) in exchange for the enhancement. Declarations to the same effect were submitted from Clark and Gaines, both also noting they risked “the potential stigma of being a Class Representative in a class action labor dispute which may affect my future employability in this industry,” and that other class members they spoke to felt the enhancement was fair and reasonable.

On July 5, 2007, twenty class members, represented by the Law Office of Randall Crane, filed objections to the proposed settlement. Their declarations stated they had approached the Crane office for representation in mid-May, unaware of the Clark action, because ARS was not paying them for overtime, among other reasons; they declared that they worked, on average, more than two hours of overtime every workday; frequently worked more than 12 consecutive hours without being paid overtime; and in fact were never paid for any overtime. They argued that the proposed settlement was “a near-total loss for class members,” compensating them for approximately 1% of the total value of their claims; and no evidence had been presented to the court to justify the settlement: no evidence regarding the likelihood of success of any of the ten causes of action, or the number of unpaid overtime hours estimated to have been worked by the class, or the average hourly rate of pay, or the number of meal periods and rest periods missed, or the value of minimum wage violations, and so on. As a result, they contended, the court had no basis on which to exercise its discretion to determine whether the settlement was fair, adequate and reasonable.

On July 13, 2007, in opposition to the objections, ARS’s counsel, Amanda Sommerfeld, filed a declaration describing the evidence ARS presented at the mediation. Sommerfeld stated:

Putative class members were paid for daily and weekly overtime during the class period, and both named plaintiffs validated the accuracy of their time records. Thus:

Clark was clocked in and out of work by a dispatcher and was paid overtime for every hour over 8 in a day or 40 in a week; he received 85.4 hours of overtime pay in 2003 and 84.3 hours of overtime pay in 2004. Clark admitted he clocked in and out by calling dispatchers, and at his deposition he verified his signature on all but one of his timecards; he had no specific recollection whether any of the records were inaccurate when he signed them, kept no personal calendars of his hours and had no way to reconstruct his hours independently from the time cards.

Gaines’s payroll records showed she worked and was paid for 48.8 hours of overtime in 2001, 122 hours in 2002, 66 hours in 2003 and 52.8 hours in 2004. Gaines verified that all the timecards with her signature were accurate.

As to meal periods, ARS had policies and procedures for accurately recording time worked and meal periods, requiring employees to clock in and clock out and to sign a time sheet once a week verifying the accuracy of their time sheets, and requiring employees to take their meal periods. Class members were responsible for keeping their own time records. ARS made meal and rest periods available, and class members were free to take their meal and rest periods. Service technicians were in charge of their own work schedules during the day and had free time during which they could take their meal and rest periods. As to Clark and Gaines:

Clark contradicted himself as to whether or not he knew that meal periods were mandatory, testified he signed meal period activity forms without reading the legend stating meal periods were mandatory, and ultimately admitted he had no recollection of whether or not he took the meal periods.

Gaines testified her meal period activity forms were accurate (but later contradicted herself by denying their accuracy).

ARS reimbursed service technicians for purchases of tools and provided them with 11 pairs of uniforms which were laundered by ARS; while there was a written memo that missing or damaged uniforms would be deducted at termination, the memo was not enforced.

ARS presented evidence that both Clark and Gaines perjured themselves in their depositions. Clark claimed to have no memory of many facts, including when he was hired and fired by ARS, his scheduled shift times, and which days of the week he worked; he claimed to have worked for ARS until he started his own business (three months prior to the deposition), and then, after being scolded by his lawyer, admitted he did not work at all between the time he left ARS and started his own business. Gaines contradicted herself, first saying her time records looked correct and later saying that even when she signed meal period forms, she did not get a 30-minute meal period.

There was an inherent conflict of interest between service technicians (who claimed they were not paid for all hours worked) and customer service representatives/dispatchers (who were responsible for clocking service technicians in and out in ARS’s computerized time keeping system). “If Gaines and other Dispatchers fraudulently entered incorrect times for the Service Technicians, then she and those Dispatchers violated ARS’s policies and the law, thereby depriving Service Technicians of the wages they were due.”

Sommerfeld attached to her declaration a copy of ARS’s PowerPoint presentation from the mediation. On the subject of overtime, this consisted of (1) a copy of ARS’s overtime policy, which states that hourly, non-exempt employees are paid an overtime rate of one and one-half times their regular rate of pay for hours in excess of 40 per workweek, except in states where local law requires overtime pay in a different manner, and (2) a few pages of signed time records and paystubs for Clark and Gaines showing payments for overtime.

On July 16, 2007, the objectors filed a reply to ARS’s opposition, asserting among other things that the evidence presented in ARS’s opposition was untimely (the fairness hearing was then scheduled for July 17); the evidence was misleading because it presented “just one side of the story,” and the objectors comprised about 1% of the class – and were 10 times as numerous as the named plaintiffs, who were receiving 44 times the recovery of the average class member. The objectors also filed an ex parte application for leave to intervene in the action.

On July 17, the trial court continued the fairness hearing until August 29, 2007. The objectors then supplemented their opposition to the settlement, pointing out that in its removal application, ARS’s expert had valued the lawsuit in the range of $21.7 to $32.8 million, and the only evidence presented in support of the proposed settlement was “inadmissible and devoid of any reasoned damages calculations.”

Finally, on August 14, 2007, two weeks before the fairness hearing, class counsel Barnes submitted another declaration, evaluating the entire case at “approximately $2,351,605.61.” Barnes stated:

As to overtime: While initially believing their strongest cause of action was for overtime compensation for service technicians, plaintiffs “have determined that there are no damages whatsoever for the overtime cause of action,” as ARS “had a legally compliant overtime policy and they actually paid overtime premium pay pursuant to their compensation policy.” Thus:

ARS’s policy was to pay service technicians an hourly minimum wage, unless their revenue for commissions met a minimum threshold (either on a commissioned basis, or minimum wage plus overtime compensation, whichever was greater).

ARS provided data showing the average service technician earned approximately $40,000 per year.

Therefore, even if a service technician worked as many as 20 hours of overtime work on a weekly basis, there would be no damages. Barnes illustrated with a hypothetical:

A technician earns $40,000 a year in commission compensation;

The minimum wage is $7.50 per hour for the class period;

The overtime rate would be $3.75 per hour (half of the hourly wage, because the commission plan was on a piece rate system so the technician has already been paid for hours worked and so is entitled to only .5 of the hourly rate for overtime hours).

Assuming the technician worked 20 hours of overtime per week, he would be entitled to $75.00 in unpaid overtime compensation ($3.75 times 20 hours = $75.00).

The technician would earn $300 per week if he were receiving the minimum wage ($7.50 time 40 hours). Adding $75.00 in unpaid overtime, he would only be earning $375 per week.

Service technicians earned approximately $40,000 per year, or $770 per week. So even with 20 hours of overtime, “they were still earning over twice as much in wages as they would if they had been paid overtime. Therefore, there are absolutely no damages on the overtime cause of action.”

As to meal periods: ARS had a written policy requiring service technicians to advise ARS when they took lunch so they could be clocked in and out. While documentary records did not support Clark’s allegation of three meal period violations a week, three violations at $7.50 per hour would equal $22.50 per week per employee, or $3,779,597.20 (assuming 167,982.1 work weeks for all class members). There were serious risks in certifying a meal period case when ARS’s written policies and time sheets show that all meals were taken, and plaintiff’s evidence would be testimony contradicting the records. Counsel believed they had a 60% chance of certifying the meal period case, for a potential claim of $2,267,758.32.

As to rest periods: ARS had a policy that employees were to take rest periods, and, at the time of settlement, the question whether a rest period claim was a wage or a penalty was very much in dispute; very few rest period claims are certified and counsel believed the rest period case “was basically of no value.”

The uniform claim was for service technicians only and was based on a charge by ARS of $30 per year ($.58 per workweek) per employee for uniforms. Counsel believed this was a clear liability claim with a 100% chance of certification, valued at $83,847.29. The evidence showed ARS provided uniforms and laundering.

The tool expense cause of action had no value, because an employee whose wages are at least twice the minimum wage may be required to provide and maintain hand tools and equipment. Here, the service technicians earned about $40,000, well in excess of twice the minimum wage.

Class counsel thus believed the total value of the case was approximately $3,863,444.49 with no reduction for risk factors; with a 60% chance of certification on the meal claim and 100% recovery on the uniform claim, the settlement value was “approximately $2,351,605.61.”

At the August 29 fairness hearing, counsel for the objectors responded to class counsel’s claim that “there are absolutely no damages on the overtime cause of action,” asserting this reflected a “staggering mistake of law . . . .” He asserted that (contrary to Barnes’s hypothetical), overtime for commission workers cannot be calculated on a minimum wage, disregarding the commission for purposes of overtime. Rather, to find the overtime rate, the amount of a commission check is divided by the number of hours worked to obtain the regular rate, and that rate is multiplied by .5 for the overtime hours. Counsel stated it was “hard to express how incorrect that is disregarding the commission earned for purposes of overtime.” Class counsel “respectfully disagreed on the law.”

After hearing from counsel, the court stated:

“The court has considered the arguments of counsel, as well as considered what’s been presented to the court and the moving papers and the objections. And, you know, I do want to make clear, I wasn’t deferring to the mediator in terms of anything; however, the fact that a mediator has been involved is an indicator that this is an arms-length transaction, that this isn’t a product of collusion, that there’s a third party who is involved in this case and trying to facilitate their resolution. It does appear to the court that there was sufficient investigation and discovery undertaken on this case for the parties to perceive that counsel is experienced in this type of litigation. And, you know, I don’t know how you figure it any other way than the number of objectors is small, less than one percent. It’s a small number of objectors. Therefore, I think we do have a presumption of fairness. I don’t think that there’s anything sufficiently brought to the court to rebut that presumption. And for that reason, the court is going to grant the request to sign the order granting final approval of the settlement . . . .”

The court signed the order approving the settlement, finding the enhancements for Clark and Gaines to be fair and reasonable and awarding $600,000 as attorney fees, $26,199.27 as costs of litigation, and $18,375 for claims administrator fees (for a total expense of $44,574.27). The objectors filed a timely appeal.

DISCUSSION

Our review of the trial court’s approval of a class action settlement is limited in scope. We make no independent determination whether the settlement terms are “fair, adequate and reasonable,” but only determine whether the trial court acted within its discretion. (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 127-128 (Kullar). Here, it did not, because the court did not receive and consider sufficient information on a core legal issue, affecting the strength of the case for plaintiffs on the merits, to make the requisite independent assessment of the reasonableness of the terms of the settlement. (Id. at pp. 130, 133.) We also conclude the enhancement or incentive awards were excessive, and that the award of costs in excess of the maximum amount stated in the notice to the class was improper.

We recount first the legal principles governing the approval of a class action settlement, and then turn to the particulars in this case.

The applicable principles.

The trial court must determine whether a class action settlement is fair and reasonable, and has a broad discretion to do so. That discretion is to be exercised through the application of several well-recognized factors. The list, which “‘is not exhaustive and should be tailored to each case,’” includes “‘the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.’” (Id. at p. 128, quoting Dunk, supra, 48 Cal.App.4th at p. 1801.) “‘“The most important factor is the strength of the case for plaintiffs on the merits, balanced against the amount offered in settlement.”’” (Kullar, supra, 168 Cal.App.4th at p. 130.) While the court “‘must stop short of the detailed and thorough investigation that it would undertake if it were actually trying the case,’” it “‘must eschew any rubber stamp approval in favor of an independent evaluation.’” (Ibid.)

In Dunk, the court observed that “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.” (Dunk, supra, 48 Cal.App.4th at p. 1802.) But Kullar makes clear that this is only an initial presumption. The point is cogently made in Kullar, where the trial court’s approval of a class action settlement was vacated because the court “was not provided with basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise.” (Kullar, supra, 168 Cal.App.4th at p. 133.)

In Kullar, the court pointed out that “neither Dunk . . . nor any other case suggests that the court may determine the adequacy of a class action settlement without independently satisfying itself that the consideration being received for the release of the class members’ claims is reasonable in light of the strengths and weaknesses of the claims and the risks of the particular litigation.” (Kullar, supra, 168 Cal.App.4th at p. 129.) Kullar continues:

“The court undoubtedly should give considerable weight to the competency and integrity of counsel and the involvement of a neutral mediator in assuring itself that a settlement agreement represents an arm’s-length transaction entered without self-dealing or other potential misconduct. While an agreement reached under these circumstances presumably will be fair to all concerned, particularly when few of the affected class members express objections, in the final analysis it is the court that bears the responsibility to ensure that the recovery represents a reasonable compromise, given the magnitude and apparent merit of the claims being released, discounted by the risks and expenses of attempting to establish and collect on those claims by pursuing the litigation. ‘The court has a fiduciary responsibility as guardians of the rights of the absentee class members when deciding whether to approve a settlement agreement.’” (Kullar, supra, 168 Cal.App.4th at p.129, emphasis added.)

Kullar further explains that, while there is usually an initial presumption of fairness when a proposed class action settlement was negotiated at arm’s length by counsel for the class, “‘to protect the interests of absent class members, the court must independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished.’” (Kullar, supra, 168 Cal.App.4th at p. 130.) To make that determination, “‘the factual record before the . . . court must be sufficiently developed,’” and the initial presumption to which Dunk refers “‘must then withstand the test of the plaintiffs’ likelihood of success.’” (Ibid.) Again, “‘“The most important factor is the strength of the case for plaintiffs on the merits, balanced against the amount offered in settlement.”’” (Ibid.) In Kullar, because the trial court was not presented with data permitting it to review class counsel’s evaluation of the sufficiency of the settlement, the order approving the settlement was vacated. (Kullar, supra, 168 Cal.App.4th at p. 131.) As we shall see, the same result is required here.

The settlement in this case.

Applying the principles enunciated in Kullar and recognized in Dunk and other cases, we are compelled to find the trial court abused its discretion in approving the settlement.

The absence of information on a core legal issue.

We begin with Kullar’s observation that an informed evaluation of a proposed settlement cannot be made without an understanding of the amount that is in controversy and the realistic range of outcomes of the litigation. (Kullar, supra, 168 Cal.App.4th at p. 120.) In this case, the court’s order granting final approval, while finding the settlement was “the product of serious, informed, non-collusive negotiations” and was “fair, reasonable and adequate,” gives no hint as to the court’s “independent assessment of the adequacy of the settlement terms.” (Kullar, supra, 168 Cal.App.4th at p. 132.) The court’s comments at the hearing show only that it found the settlement was entitled to “a presumption of fairness” – based on arm’s length bargaining with a respected mediator, sufficient investigation and discovery, counsel with experience in similar litigation, and a small number of objectors – and there was nothing “sufficiently brought to the court to rebut that presumption.” Thus the court seems to have accepted ARS’s contention – which it repeats on appeal – that the objectors “had the burden of rebutting the presumption before the trial court,” and “were required to present evidence showing that the settlement was unfair” based upon criteria including the strength of the case, the amount offered in settlement, and the other factors recognized in the cases. (Emphasis added.) While we question that formulation, one point is certain: it is the trial court’s duty, whether or not there are objectors, to employ those factors to evaluate independently the fairness of a proposed settlement.

In any event, the record before the trial court in this case did not contain the information required for “an understanding of the amount that is in controversy and the realistic range of outcomes of the litigation.” (Kullar, supra, 168 Cal.App.4th at p. 120, 132 “data must be provided that will enable the court to make an independent assessment of the adequacy of the settlement terms”.) This is vividly demonstrated in connection with the cause of action for unpaid overtime for the service technicians, which plaintiffs “originally … believed to be their strongest cause of action . . . .” Two weeks before the final fairness hearing, class counsel finally provided an evaluation of plaintiffs’ case, which described the overtime claim as having “absolutely no” value. No data was included to support counsel’s evaluation (and the only data anywhere in the record was a copy of ARS’s overtime policy, stating it paid overtime at one and a half times the employee’s regular rate, along with a couple of pay stubs and time sheets showing some overtime payments to Clark and Gaines). Instead, counsel stated that ARS had “a legally compliant overtime policy and they actually paid overtime premium pay pursuant to their compensation policy.” He then pointed out that the average technician earned $40,000 a year, and “therefore” even if a technician worked as many as 20 hours of overtime every week, he would incur no damages. This was because his overtime rate, based on a minimum wage of $7.50, would be $3.75, and 40 hours plus 20 hours of overtime at the minimum wage would result in earnings of only $375 per week (whereas the technicians actually earned an average of $770 per week, “over twice as much in wages as they would if they had been paid overtime”).

When the objectors protested, at the fairness hearing, that overtime is to be calculated on the technician’s actual commission wages, not on the minimum wage, and contended that class counsel’s evaluation was thus based on a “staggering mistake of law,” the trial court made no comment, and proceeded to approve the settlement. This, it seems to us, demonstrates the court made no independent assessment of the strength of the plaintiffs’ case, simply accepting class counsel’s assessment of value, including his assertion that the overtime claim – which “is what this case was about” – had “absolutely no” value. But if in fact there is a legitimate dispute on the appropriate way to calculate overtime, then the class’s overtime claim obviously has some value, and if the objectors were correct on the law, the claim may have had considerable value. None of these possibilities was considered or evaluated when the trial court approved the settlement; instead, the trial court simply accepted class counsel’s assessment. Without some kind of evaluation of this legal point – and in light of declarations from objectors stating they worked at least 10 hours of overtime every week without compensation – we cannot see how the trial court could “satisfy itself that the class settlement is within the ‘ballpark’ of reasonableness.” (Kullar, supra, 168 Cal.App.4th at p.133.)

The objectors, of course, raise this point in their opening brief, contending at some length that class counsel misunderstood and misapplied California overtime rules. Clark did not respond to the objectors’ legal argument, asserting that the “resolution of that issue . . . requires a determination of the merits” which is “plainly impermissible and not an appropriate area of inquiry in determining whether a particular settlement agreement is fair.” ARS similarly argues that the trial court “wisely stayed within its discretion and did not make an improper ruling of law on the merits of the Plaintiffs’ and class members’ overtime claims.” Both Clark and ARS cite 7-Eleven Owners for Fair Franchising v. The Southland Corp. (2000) 85 Cal.App.4th 1135 (7-Eleven). 7-Eleven tells us that neither the trial court nor this court has “‘the right or the duty to reach any ultimate conclusions on the issues of fact and law which underlie the merits of the dispute,’” and the appellate court “‘“need not and should not reach any dispositive conclusions on the admittedly unsettled legal issue.”’” (Id. at p. 1146.)

We do not disagree with the proposition that the court need not reach any “ultimate” or “dispositive” conclusions on legal or factual issues; as 7-Eleven aptly observes, “the operative word is ‘settlement.’” (7-Eleven, supra, 85 Cal.App.4th at p. 1150.) But while “ultimate” or “dispositive” conclusions are not necessary, it is not possible for a court to evaluate “‘“the strength of the case for plaintiffs on the merits”’” (Kullar, supra, 168 Cal.App.4th at p. 130) with no regard at all for whether or not a legal issue exists that may have a significant impact on the value of the claim. And we do not read 7-Eleven to suggest otherwise. The simple fact is that “‘the proposed settlement cannot be judged without reference to the strength of plaintiffs’ claims’” (Kullar, supra, 168 Cal.App.4th at p. 130), and the strength of a claim cannot be judged without reference to the legal terrain in which it operates. (Cf. id. at pp. 132-133 settling parties should provide “a meaningful and substantiated explanation of the manner in which the factual and legal issues have been evaluated”; id. at p. 129 “no analysis was provided of the factual or legal issues that required resolution to determine the extent of any one-hour-pay penalties to which class members may have been entitled”.)

In short, the trial court is obliged, at a minimum, to determine whether a legitimate controversy exists on a legal point, if that legal point significantly affects the valuation of the case for settlement purposes. Here, the trial court simply accepted class counsel’s conclusion the overtime claim had “absolutely no” value, without a “substantiated explanation” of the manner in which a core legal issue was evaluated. (See Kullar, supra, 168 Cal.App.4th at pp. 132-133.) The court thus lacked a sufficient basis to “satisfy itself that the class settlement is within the ‘ballpark’ of reasonableness” (id. at p. 133), and therefore abused its discretion in approving the settlement. While we have noted at length the absence of any reasoned analysis of the legal merits of this class’s claim for overtime pay, we must note that counsel acknowledged at oral argument that the factual bases for this settlement have also not been fully developed.

The enhancements for the named plaintiffs.

We also conclude that it was an abuse of discretion to permit incentive or enhancement awards of $25,000 each to Clark and Gaines in the circumstances of this case.

In Matter of Continental Illinois Securities Litigation (7th Cir. 1992) 962 F.2d 566 (Continental Illinois), the court noted the “threshold question . . . whether a named plaintiff is ever entitled to a fee,” and answered the question in the affirmative. “Since without a named plaintiff there can be no class action, such compensation as may be necessary to induce him to participate in the suit could be thought the equivalent of the lawyers’ nonlegal but essential case-specific expenses, such as long-distance phone calls, which are reimbursable.” (Id. at p. 571.) Subsequent cases have reiterated that an incentive award is appropriate “if it is necessary to induce an individual to participate in the suit,” and have noted “relevant factors” to consider in deciding whether such an award is warranted. (Cook v. Niedert (7th Cir. 1998) 142 F.3d 1004, 1016 (Cook).) Those factors include “the actions the plaintiff has taken to protect the interests of the class, the degree to which the class has benefitted from those actions, and the amount of time and effort the plaintiff expended in pursuing the litigation.” (Ibid.) Federal district courts have identified other factors as well, including “the risk to the class representative in commencing suit, both financial and otherwise,” “the notoriety and personal difficulties encountered by the class representative,” the duration of the litigation, and “the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation.” (Van Vranken v. Atlantic Richfield Co. (N.D. Cal. 1995) 901 F.Supp. 294, 299.)

In Cook, the Seventh Circuit affirmed the propriety of a $25,000 incentive award to the named plaintiff in a suit alleging pension fund mismanagement. The court found the relevant factors were “readily satisfied,” where the lawsuit resulted in “substantial structural reforms” to the pension fund as well as a cash recovery of more than $13 million. (Cook, supra, 142 F.3d at pp. 1008, 1016.) In addition, a special master, “in findings that were well-supported by the evidence,” noted that plaintiff Cook “spent hundreds of hours with his attorneys and provided them with an ‘abundance of information,’” and “most significantly . . . found that, in filing the suit, Cook reasonably feared workplace retaliation.” (Id. at p. 1016.) The Court of Appeals found no error in the incentive award, “in light of the benefit Cook bestowed on his class, the risks he faced in bringing the case and the time he spent pursuing it . . . .” (Ibid.)

In this case, the court found the enhancements of $25,000 each for Clark and Gaines to be “fair and reasonable,” but offered no rationale for why this was so. The record shows, with regard to time spent on the litigation, that Clark and Gaines spent “several hours” in initial consultations with counsel, had their depositions taken for a full day, and Gaines attended a full day mediation; in addition, both reviewed “thousands of pages” of documents for the mediation. But, except to say they spent “countless hours” participating in the prosecution of the case, no further quantification of the time Clark and Gaines spent appears in the record. As to the actions taken to protect the interests of the class, or the risk to the class representative in commencing suit, the record contains only conclusory declarations claiming a “potential stigma” that “may affect . . . future employability in this industry” and “the potential risk of being liable for ARS’s costs if we were unsuccessful in this lawsuit.” And as to the degree to which the class has benefitted from the named plaintiffs’ actions, we have a $2 million settlement in which the average recovery for class members is just over $550.

An enhancement that gives the named plaintiffs at least 44 times the average payout to a class member simply cannot be justified on the record in this case. (While Clark and Gaines say they spent “countless hours” on this case, a $25,000 enhancement would compensate them, if they were paid, say, $50 an hour – a rate we do not suggest would be justified – for 500 hours, or more than 12 weeks of full-time work.) Moreover, the trial court is not bound to, and should not, accept conclusory statements about “potential stigma” and “potential risk,” in the absence of supporting evidence or reasoned argument explaining why, under the particular circumstances, an actual – not a negligible – risk existed, or why it might be difficult to get plaintiffs to come forward to prosecute a particular case. This case is nothing like Cook, for example, where a $25,000 incentive award was appropriate for results that included a $13 million recovery and structural reforms, and where there were fact findings that the plaintiff spent “hundreds of hours” on the litigation and reasonably feared workplace retaliation. (Cook, supra, 142 F.3d at p. 1016.)

Clark insists that the mere disparity between the class representatives’ recovery and the class members’ recovery “is insufficient to overcome the presumption of fairness and fails to demonstrate that the trial court abused its discretion in approving the enhancement.” Clark also cites a number of federal district court cases in which the trial court approved enhancements of $25,000 or more. These contentions are unavailing. First, there is no “presumption of fairness” as to the amount of an enhancement. Second, the trial court abused its discretion not merely because of the enormous disparity in recovery, but because, as we have explained, the evidence in the record is entirely insufficient to support an enhancement of the magnitude awarded. Third, the trial court cases Clark cites have not been subjected to appellate review, and hence are not precedents to which we accord any deference. And the appellate cases cited by the parties in no way contradict the conclusion we reach here; indeed, they support it. (See, in addition to Continental Illinois and Cook, Staton v. Boeing Co. (9th Cir. 2003) 327 F.3d 938, 978, 977, 944 and while named plaintiffs “are eligible for reasonable incentive payments; see also In re US Bancorp Litig. (8th Cir. 2002) 291 F.3d 1035, 1038 without discussion; In re Mego Fin. Corp. Sec. Litig. (9th Cir. 2000) 213 F.3d 454, 456-457, 463 incentive awards of $5.)

In short, the rationale for making enhancement or incentive awards to named plaintiffs is that he or she should be compensated for the expense or risk he has incurred in conferring a benefit on other members of the class. (Cf. Continental Illinois, supra, 962 F.2d at p. 571.) Here, we simply cannot sanction, as within the trial court’s discretion, incentive awards totaling $50,000, with nothing more than pro forma claims as to “countless” hours expended, “potential stigma” and “potential risk.” Significantly more specificity, in the form of quantification of time and effort expended on the litigation, and in the form of reasoned explanation of financial or other risks incurred by the named plaintiffs, is required in order for the trial court to conclude that an enhancement was “necessary to induce the named plaintiff to participate in the suit . . . .” (Continental Illinois, supra, 962 F.2d at p. 571.)

3. Costs.

The trial court approved an award of costs totaling $44,574.27 ($26,199.27 as costs of litigation and $18,375 for claims administrator fees) from the $2 million settlement fund. However, the notice to class members of the proposed settlement stated that plaintiffs’ counsel requested reimbursement “of costs of up to $40,000.00.” Likewise, the stipulated class action settlement, which class members were invited to inspect, stated that class counsel would submit an application for an award of actual litigation costs “not to exceed Forty Thousand Dollar ($40,000), which includes the costs of claims administration,” and that the amount stated would “constitute complete consideration for all … expenses incurred to date and for all … expenses to be incurred through the completion of the litigation and its settlement.” Consequently, the trial court was not at liberty to award an amount exceeding $40,000 in costs without further notice to the class.

CONCLUSION

The trial court approved the proposed class action settlement without a substantiated explanation of the manner in which a core legal issue was evaluated, and therefore lacked information sufficient to make its own informed evaluation of the fairness of the settlement. The court also lacked evidence sufficient to justify incentive awards to the named plaintiffs of the magnitude approved in this case, and awarded costs greater than the maximum amount specified in the notice given to the class. The order must therefore be vacated and the matter remanded for a redetermination of whether the settlement is fair and reasonable, based upon the court’s receipt and consideration of sufficient information to make an independent assessment of the reasonableness of the settlement terms. We do not suggest that the proposed settlement may not ultimately be approved, and hold only that the trial court may not do so without information sufficient to assure itself that the settlement terms are in fact fair, adequate and reasonable.

DISPOSITION

The order approving the class action settlement agreement and dismissing the case with prejudice is reversed and the matter is remanded for further proceedings consistent with this opinion. Appellants shall recover their costs on appeal, as a joint and several obligation of plaintiffs and defendants.

CERTIFIED FOR PUBLICATION

BAUER, J.*

We concur:

RUBIN, Acting P. J.

FLIER, J.

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S064337

v. )

) San Diego County

RAMON JAY ROGERS, ) Super. Ct. No. SCD 119402

)

Defendant and Appellant. )

)

A jury convicted defendant Ramon Jay Rogers of the first degree murders of Beatrice Toronczak and Rose Albano and the second degree murder of Ron Stadt. (Pen. Code, § 187, subd. (a).) The jury also found true the special circumstance that defendant had been convicted of multiple murders. (§ 190.2, subd. (a)(3).) At the penalty phase of trial, the jury returned a verdict of death. Appeal to this court is automatic. (§ 1239, subd. (b).)

We affirm the judgment of death as modified to reflect that defendant’s sentence on the second degree murder count is 15 years to life in prison. (See post, part II.C.1.)

I. Facts

A. The Guilt Phase

Defendant was the resident manager of an apartment complex at 7007 Saranac in San Diego. In 1996, he was arrested and charged with murdering Ron Stadt, Rose Albano, and Beatrice Toronczak. Stadt was once defendant’s roommate and best friend. He vanished in June 1993, and his body was never found. Albano had been living with defendant and was pregnant with his child at the time of her disappearance in December 1993. On December 29, 1993, her left arm, left leg, and jawbone were found in a trash bag approximately a mile and a half from defendant’s sister’s home. Toronczak had a five-year-old son with defendant and had recently moved into his apartment when she disappeared in February 1996. The next month, her severed fingers and parts of her jawbone were discovered in a storage area beneath defendant’s apartment.

The three victims had been acquainted with each other, and many of the witnesses at trial knew all three.

1. The Prosecution Case

a. Ron Stadt

While in the Navy, Ron Stadt and defendant became best friends. After leaving the Navy, they both lived San Diego. In July 1992, Stadt separated from his wife Debra Stadt. He subsequently moved in with defendant, but did not stay there for long because he felt uncomfortable. In April or May 1993, Stadt discovered defendant was having an affair with Debra. Stadt intended to use evidence of the affair in his child custody dispute with Debra.

On June 24, 1993, Michael Proo was at work with Stadt when he overheard Stadt talking to defendant on the telephone in a heated conversation. After the call, Stadt told Proo he was going to defendant’s apartment to retrieve some personal items, perhaps jewelry, left there by Debra. Stadt and defendant had not been getting along, and Stadt was worried that defendant’s offer to return the jewelry was a setup. Stadt asked Proo and Proo’s wife to go with him, but they declined. Around 6:15 or 6:30 p.m., Stadt left the shop to go to defendant’s apartment. Although Stadt was scheduled to work the next day, he never returned, not even to collect his paycheck.

On June 24, 1993, at about 6:20 p.m., Debra drove to defendant’s apartment. She saw Stadt driving his truck in the alley to the apartments on Saranac, with defendant following in his own truck. Defendant saw Debra and told her in a “fairly urgent” tone of voice to leave. Debra complied. Neither she nor any of Stadt’s friends, family members, or other contacts ever saw Stadt again. After June 24, 1993, Stadt’s credit card accounts showed no cardholder activity.

The next day, Debra asked defendant why he was with Stadt, since she understood the two were no longer talking to each other. Defendant said Stadt was at the apartments to pick up a ladder. On July 2, 1993, however, defendant told a detective from the Imperial Beach Sheriff’s Department that Stadt came to his residence about 6:45 p.m. on June 24, 1993, to pick up jewelry Debra had left.

After Stadt disappeared, defendant stated to Debra and other friends at various times that Stadt was killed in a fight, that he drove off into the sunset, that he was missing and would not be bothering Debra anymore, that he left because he did not want to pay child support, and that he was mountain lion food. Debra once indicated to defendant that if he had done anything to Stadt, then Stadt’s body could be identified by his extensive dental work. Defendant responded that was the only thing he had forgotten, and it was the only mistake he had made.

Debra testified that, after Stadt vanished, defendant was in possession of Stadt’s key to Debra’s car and a radar detector that had belonged to Stadt. Stacie Wickett and Gwytha Zelinsky testified that, after Stadt disappeared, defendant had called them using their unlisted telephone numbers. The women had not given these numbers to defendant but had shared them with Stadt, who presumably wrote them in his phone book.

b. Rose Albano

Defendant told Loretta Peer that Rose Albano was pregnant, and that Albano claimed he was the father. He told Ash Darwish that he wanted Albano to get an abortion and move out of his apartment, but she wanted to do neither. Defendant told Kimberly Skolte he did not want to marry Albano, and told Skolte and Darwish he did not want to be responsible for Albano’s other two children.

Albano’s parents last saw Albano on December 18, 1993. On December 23, 1993, defendant called the San Diego Police Department to report Albano missing. He said he last saw her on December 12, 1993, at around 1:00 p.m. He also said she was pregnant, she lived with him at 7007 Saranac, apartment 209, and she might be carrying about $6,400 she had withdrawn from her retirement account. On December 24, 1993, defendant again called the police to report Albano missing, but this time he gave a different address for her, and said he last saw her on December 21, 1993, at 7:00 a.m.

Defendant never expressed any concern over Albano’s disappearance and did not tell his friends, unless they asked, that she was gone. He was evasive when Pamela LeFrere suggested they look for her. Regarding Albano’s disappearance, defendant told friends and others at various times that she had gone to Los Angeles or to see her sister, that she and Stadt were shopping in Mexico, that she went shopping one night and did not return, and that she might have gone to the Philippines. Around Christmas of 1993, before Albano vanished, defendant had told Loretta Peer that Albano would be leaving his apartment in two weeks because she had lined up a secretarial job.

On December 29, 1993, Albano’s partial remains were found in a trash bag in a rural, mountainous area about a mile or a mile and a half from defendant’s sister’s house. On that same day, defendant informed his sister that Albano’s mother told him Albano’s body parts had been found. The San Diego County Sheriff’s Department, however, did not tell Albano’s parents that her remains had been identified until January 27, 1994.

Other evidence showed that on December 17, 1993, Albano had withdrawn over $4,600 from her retirement account. After she went missing, defendant had a used engine and new tires installed on his truck, which would have cost approximately $4,000.

Kimberly Skolte testified that around the second week of March 1994, defendant told her that Albano had been found murdered and the police had interrogated him. Defendant gave Skolte $2,400 in cash, his airline ticket to Poland for the end of March (to visit Beatrice Toronczak and their son), his ATM card with his personal identification number (PIN), his mailbox keys, and his passport. The next day, he brought her Toronczak’s passport. Defendant told Skolte to hold onto his things, because he was concerned he was a suspect and afraid the police would find the plane ticket and think he might have had a motive or be fleeing. On March 18, 1994, he gave her another $600 in cash. Skolte returned the items to defendant after two weeks because she did not want to be responsible for them.

c. Beatrice Toronczak

Defendant and Beatrice Toronczak had a young son named Nicholas. For a period of time, Nicholas lived with Toronczak in Poland, and defendant was determined to get him back. Defendant did not care for the way Toronczak was raising Nicholas. In late 1995, defendant traveled to Warsaw and returned with Nicholas on January 3, 1996. Toronczak arrived in San Diego on February 11, 1996, and moved into defendant’s apartment. Defendant had to move his then live-in girlfriend, Rose McKinney, to another apartment in the complex because Toronczak did not want McKinney around Nicholas.

Toronczak was last seen on or shortly after her birthday on February 18, 1996. Defendant told friends and Toronczak’s mother different things about her disappearance, e.g., that he did not know where Toronczak was, that Toronczak ran off with a Mexican man to the Mexican border, that she left and probably went to Germany, and that she maybe went to Las Vegas or to Poland. Defendant expressed no concern over her disappearance and did not try to find her. He refused a request by Toronczak’s mother to file a missing person report and told her not to worry. Meanwhile, Nicholas was living with defendant.

On March 11, 1996, the police went to defendant’s apartment to investigate a missing person report concerning Toronczak. They entered the three storage rooms underneath defendant’s apartment and saw evidence of a crime scene. After securing a search warrant, the police seized a number of items from those rooms, including a tote bag containing Toronczak’s driver’s license, her luggage containing clothing and personal items, and a yellow bucket containing what proved to be Toronczak’s 10 severed fingers and parts of her jaw with some teeth attached as well as some loose teeth. Other seized items included female clothing and underwear that were cut apart, bloodstained flex cuffs that were cut, a bloodstained piece of cardboard, a butcher knife with Toronczak’s blood and hair, a claw hammer with red stains, a blue tarp with red stains and hair, a handsaw stained with blood and biological matter, a bloodstained four-by-four piece of wood, and two pair of branch clippers, one of which had red stains.

Also recovered from the storage room were a pair of yellow Playtex gloves stained with Toronczak’s blood. Defendant’s fingerprints were found inside the fingertips of latex surgical gloves, which apparently had been used inside the larger bloodstained Playtex gloves. Only defendant had the keys to the storage room.

Evidence seized from defendant’s apartment included four firearms and unused latex surgical gloves, yellow Playtex gloves, and flex cuffs. Also recovered were portions of a calendar for June 1993, with the dates 1, 9, and 24 cut out, and for December 1993, with the dates 7, 19, and 26 cut out.

During the initial police entries into the second and third storage rooms, defendant had been placed in a police car. While in the car, he made a cell phone call to Rose McKinney. Although McKinney denied the incident at defendant’s trial, she had earlier told Russell Wittmann that defendant had called from the back of the police car to tell her that he “did it” for them.

d. Other Evidence

Kelli Snider once told defendant she had killed someone, which was not true but which she said to get defendant’s attention. Defendant told her he wanted her to shoot and kill a former business associate of his named Dixon Rice. They discussed a price between $10,000 and $20,000, and he showed her where Rice lived. Snider backed out of the plan, telling defendant she had never killed before and could not do so. Defendant told her that he had not believed she would go through with it, and that he was just testing her. At the time of trial, Snider was taking medication for depression.

Once during a conversation with defendant, Loretta Peer told him she was having problems with her husband. Defendant said if she ever wanted him taken care of, he knew many bad people who could get rid of people and their body parts would never be found.

2. The Defense Case

The defense disputed the prosecution’s case, arguing that defendant had no motive to kill any of the victims but others did, and that certain key prosecution witnesses were not credible. The defense pointed out that no physical evidence tied him to the Stadt and Albano cases, and that Rose McKinney not only had a motive to kill Toronczak but also had access to the storage room keys and was the owner of the yellow bucket containing Toronczak’s partial remains.

B. The Penalty Phase

1. The Prosecution Case

The prosecution relied on the circumstances of the underlying murders in advocating for the death penalty.

The prosecution also presented evidence of two uncharged batteries. One incident occurred in 1994, when defendant was in Rose Sullivan’s apartment to repair something in the bathroom. Sullivan was standing behind defendant when he suddenly turned around to face her. Defendant grabbed her, lifted her top, put his hand on her breast, and started to kiss her. Sullivan pushed defendant away, and he left and never mentioned the incident.

The second incident occurred in March 1995. Defendant had entered Rose McKinney’s apartment, apparently through a patio door. He was hiding in the bedroom closet when McKinney and Preston Hunter entered the apartment and went to bed, after having just returned from Mexico. From the closet defendant telephoned McKinney three times and whispered things. McKinney could not understand what was being said during the first two calls, but recognized defendant’s voice the third time when he told her to get that man off her bed. McKinney then went to the living room to see where defendant was. Defendant was very upset as he emerged from the bedroom and approached McKinney. He grabbed her and ripped off her tank top, and the two pushed each other around. The incident caused McKinney’s gums to bleed, and she sustained bruising on her arm and near her ankle. Meanwhile, Hunter had left the apartment and called the police. After the police arrived and placed defendant in custody, Hunter found his shoes and basketball shorts cut up in the dishwasher.

The prosecution additionally introduced victim impact testimony from the families of the victims, including Beatrice Toronczak’s mother, Ron Stadt’s father, and Rose Albano’s father.

2. The Defense Case

Members of defendant’s biological family (Franks) and his adoptive family (Rogers) described the positive relationship between the two families as defendant grew up. The families would visit each other, and defendant never expressed resentment about living with the Rogers family. Defendant was adopted by the Rogers family because of finances, not because of anything he did. Defendant was healthy, happy, had friends and girlfriends, and was fun to be around. He was kind, gentle, respectful, and not aggressive. He was active in sports during high school, helped around the house, and held two or three jobs at one time. Defendant was a good, caring father to Nicholas.

A number of defendant’s long-time friends from Idaho provided positive testimony about defendant and their experiences with him. Defendant’s one-time romantic interest, Kelli Snider, testified that defendant was happy and never rude or disrespectful, and that he remained calm even when his girlfriend Rose McKinney would get angry with him.

Defendant presented two mental health experts. Neuropsychologist Kirsten Fleming evaluated defendant and concluded he was a bright individual with a very high-functioning brain. Dr. Fleming saw no evidence of either acquired brain damage or developmental brain damage, but noted defendant had a somewhat low frustration level. Psychiatrist Samuel Benson, Jr., performed a psychiatric evaluation of defendant and concluded he did not fit the profile of a serial killer. Given the absence of abnormal brain functioning, Dr. Benson could not explain defendant’s conduct as being due to a malfunctioning brain.

II. Discussion

A. Pretrial Issues

1. Voir Dire

Defendant contends the trial court’s denial of his request for attorney-conducted and sequestered voir dire, combined with the court’s inadequate voir dire of the prospective jurors regarding their death penalty views and potential racial bias, violated his state and federal constitutional rights to voir dire, a fair trial, due process, and reliable guilt, special circumstance, and penalty determinations.

a. Background Facts

Defendant’s case was tried in 1997. At that time, Code of Civil Procedure section 223 provided: “In a criminal case, the court shall conduct the examination of prospective jurors.” This statute gave the court discretion, “upon a showing of good cause, to supplement the examination by such further inquiry as it deems proper, or shall itself submit to the prospective jurors upon such a showing, such additional questions by the parties as it deems proper . . . .” (Code Civ. Proc., former § 223, as added by initiative (Prop. 115), approved by voters at Prim. Elec. June 5, 1990.) There is no dispute that this former version of the statute controlled in this case.

On January 22, 1997, the trial court asked the parties to exchange their proposed jury questionnaires and to reach some agreement on questions prior to a future motions hearing. At a hearing on March 24, 1997, the trial court granted defendant’s motions for use of a jury questionnaire and for open-ended, nonleading questions, but denied all other motions for individual and/or sequestered voir dire, attorney-conducted voir dire, and small group voir dire, including the prosecution’s motion for attorney-conducted voir dire. The court expressed satisfaction with the prosecution’s proposed jury questionnaire, but requested the defense to provide its proposed questionnaire as soon as possible. The record contains no indication that the defense ever did so.

On June 9, 1997, the trial court began the jury selection process by questioning and excusing prospective jurors on hardship grounds. The court informed the remaining prospective jurors about the murder charges against defendant and the multiple-murder special-circumstance allegation, and of defendant’s not guilty plea and denial of the allegation. After explaining some of the basic guilt phase instructions, the court emphasized the contingent nature of the penalty phase and the significance of aggravating and mitigating evidence as factors the jury would weigh to decide the appropriate sentence.

After making this presentation, the trial court stated it would be distributing questionnaires asking the prospective jurors about their respective backgrounds and views on the outlined instructions and proceedings. The court explained there were no right or wrong answers, but emphasized the importance of answering the questions completely and signing the questionnaire at the end.

Using the completed questionnaires as a starting point, the trial court asked a number of prospective jurors for more detail regarding their answers on different topics, including their death penalty beliefs. At times the court invited each side to ask questions, and it also probed certain questionnaire responses at the parties’ prompting.

b. Analysis

Defendant claims the trial court’s voir dire on the death penalty was inadequate because: (1) he was not allowed to voir dire prospective jurors at all, and (2) he was deprived of the opportunity to inquire — either through counsel or the court — about the effect of any of the circumstances of the charged crimes on the prospective jurors’ bias in favor of a death verdict. He contends that his due process rights were violated and that the trial court’s inadequate voir dire made it impossible to determine from the record whether any of the seated jurors held disqualifying views on the death penalty.

Defendant neither objected to the questionnaire used, nor proposed any modifications or additional questionnaire inquiries. He therefore has forfeited any claim that the questionnaire and its contents were inadequate to root out any pro-death-penalty bias on the part of the prospective jurors. (People v. Robinson (2005) 37 Cal.4th 592, 617.) In any case, defendant’s claims lack merit and do not warrant a reversal.

“It is established that a trial court ‘is in the best position to assess the amount of voir dire required to ferret out latent prejudice, and to judge the responses’ citation, and hence a trial court has ‘ “great latitude in deciding what questions should be asked on voir dire.” ’ Citation.” (People v. Robinson, supra, 37 Cal.4th at p. 617; see People v. Waidla (2000) 22 Cal.4th 690, 713-714 applying abuse of discretion standard of review.) “ ‘Unless the voir dire by a court is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal.’ ” (People v. Carter (2005) 36 Cal.4th 1215, 1250; see People v. Robinson, supra, at p. 617.)

The record here clearly shows that defendant was provided opportunities to elicit information on voir dire by submitting questions for inclusion in the juror questionnaire. Despite defendant’s failure to propose his own areas of inquiry, the questionnaire used in this case elicited significant details regarding the prospective jurors’ backgrounds, probed their views and experiences in numerous relevant areas, explored their knowledge of defendant’s case, their attitudes about the criminal justice system, and their death penalty views, and required them to provide their responses under penalty of perjury. The court also allowed both sides to directly elicit information by asking questions of certain prospective jurors during the trial court’s oral examination, and calling to the court’s attention specific questionnaire responses warranting additional exploration. When certain prospective jurors requested confidentiality during the oral examination, the trial court acquiesced but included both parties in that process.

These procedures “provided an adequate basis upon which the parties were able to exercise challenges for cause as well as peremptory challenges.” (People v. Robinson, supra, 37 Cal.4th at p. 618 addressing similar questionnaire with followup trial court questioning; People v. Carter, supra, 36 Cal.4th at p. 1251 voir dire found more than adequate when written juror questionnaires were used.) Accordingly, the trial court did not err or abuse its discretion in refusing to allow additional attorney-conducted or sequestered voir dire.

In maintaining the voir dire was inadequate, defendant relies principally on People v. Cash (2002) 28 Cal.4th 703. There, the defendant was charged with the first degree murder of Bud Smith and the attempted murder of Susan Balestri. Because the information did not expressly allege the defendant’s prior murders of his grandparents (which were introduced in the penalty phase), the trial court prohibited the defendant from inquiring whether prospective jurors would automatically vote for the death penalty if the defendant had previously committed another murder. (Id. at pp. 719, 721.) In holding the defense should have been permitted to probe the prospective jurors’ attitude as to that circumstance, Cash reasoned that the “defendant’s guilt of a prior murder (specifically, the prior murders of his grandparents) was a general fact or circumstance that was present in the case and that could cause some jurors invariably to vote for the death penalty, regardless of the strength of the mitigating circumstances . . . .” (Id. at p. 721.)

Defendant’s attempt to analogize this case to Cash fails. Here, the trial court specifically informed the prospective jurors that defendant was charged with three first degree murders, that the special circumstance allegation pertained to defendant’s conviction of more than one murder offense, and that the death penalty decision would arise only if the jury were to find defendant guilty of first degree murder and find the special circumstance to be true. Because the prospective jurors had been fully apprised that multiple murders were at issue in the trial, the significance of that general circumstance to their death penalty views could be ascertained through the questions asking them (1) whether there were “circumstances under which you would automatically vote for the death penalty regardless of the various factors the law says you are to consider” and (2) whether, if the jury were to find defendant guilty of first degree murder and to find the special circumstance true, “will you listen to and consider all the evidence presented by the People and the defendant at the penalty phase of the trial before you reach a decision on what the penalty should be?” Thus, this case presents no parallel to Cash, where the trial court’s refusal to allow questioning concerning the defendant’s guilt of a prior murder blocked any meaningful voir dire inquiry into whether the prospective jurors’ views about that significant general circumstance would cause them to automatically vote for the death penalty. (People v. Cash, supra, 28 Cal.4th at p. 721.)

Defendant further claims the trial court should have ascertained whether the prospective jurors’ penalty phase decisionmaking would be affected by the particular circumstances that defendant was close to his three alleged murder victims, that one of the victims was pregnant, that another was the mother of his child, and that two were dismembered. We cannot agree.

As we have explained, “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 as jurors in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented. Citation. In deciding where to strike the balance in a particular case, trial courts have considerable discretion.” (People v. Cash, supra, 28 Cal.4th at pp. 721-722.) Thus, it is “not error to refuse to permit counsel to ask questions based upon an account of the facts of the case, or to ask a juror to consider particular facts that would cause him or her to impose the death penalty.” (People v. Jenkins (2000) 22 Cal.4th 900, 991.) In this case, it was more than sufficient that the prospective jurors — having been informed that defendant allegedly murdered a male friend and two former girlfriends — were asked, in various ways, whether there were circumstances under which they would impose the death penalty automatically regardless of other legally relevant factors. Prospective jurors, moreover, need not necessarily be informed that a charged homicide involved dismemberment, at least in the absence of evidence that the dismemberment occurred while the victim was still alive. (People v. Zambrano (2007) 41 Cal.4th 1082, 1123.) No error or abuse of discretion appears.

Finally, relying on the circumstance that he is a biracial man (having a White father and a mother from Trinidad) charged with murdering two White victims (Ron Stadt and Beatrice Toronczak) and a Filipino victim (Rose Albano), defendant complains the trial court conducted an inadequate voir dire because it asked no questions concerning the prospective jurors’ potential racial biases. A defendant, however, “cannot complain of a judge’s failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry.” (Turner v. Murray (1986) 476 U.S. 28, 37; see also id. at pp. 46-47, fn. 2 J.; People v. Robinson, supra, 37 Cal.4th at p. 620.) Here, defendant’s failure to offer or request specific questions regarding racial bias forfeits review of the issue on appeal.

2. Denial of Defendant’s Motion to Suppress

The trial court denied defendant’s pretrial motion to suppress evidence seized from his apartment, the three storage rooms below his apartment, and his vehicles. Defendant contends this ruling was erroneous and violated his state and federal constitutional rights to be free from unreasonable searches and seizures.

a. Background Facts

At the hearing on defendant’s motion to suppress (§ 1538.5), the trial court considered the preliminary hearing transcript, viewed photographs of the searched premises, and heard testimony from the following witnesses.

Officer Vernon Bowman of the San Diego Police Department testified that Barbara Slimak reported a missing person to him on March 6, 1996. The missing person was Biata Beatrice Toronczak, and Slimak indicated she was making the report on behalf of Toronczak’s mother, Maria Bartosz, who lived in Germany. Slimak said Bartosz asked her to make the report, because defendant refused Bartosz’s request to do so and Bartosz feared he was responsible for Toronczak’s disappearance. Officer Bowman learned from Slimak that defendant and Toronczak had a five-year-old child together, and that the child sometimes lived with Toronczak in Europe and sometimes with defendant in the United States. The last known address for Toronczak was defendant’s address at 7007 Saranac, apartment 209, in San Diego.

Barbara Slimak testified Bartosz told her that she never lost contact with Toronczak for more than a week, and Bartosz was very upset because it had been three or four weeks since she last spoke with her daughter on February 18, 1996. Bartosz had called several people, including defendant and Slimak, looking for Toronczak. Defendant told Bartosz that Toronczak “just took off,” and that he did not know where she was. Bartosz insisted that Slimak tell the police to check the basement storage area of the apartment.

Detective Richard Carlson of the San Diego Police Department testified he worked in the missing persons unit and reviewed Officer Bowman’s report around 8:00 a.m. on March 11, 1996. At about 9:00 a.m., Carlson telephoned defendant and asked how long Toronczak had been gone. Defendant claimed she had been gone about a week to a week and a half, then said he had to go, and hung up. Carlson thought defendant seemed short with him.

Just after 9:00 o’clock that morning, Detective Carlson called Slimak. Slimak told him what Bartosz had told her and said Bartosz had witnessed defendant threaten to lock Toronczak in the basement, cellar, or storage area of the residence. Bartosz felt defendant meant it and believed this was what was taking place. Slimak also believed defendant had something to do with Toronczak’s disappearance.

After speaking with Slimak, Detective Carlson turned his attention to other cases, making telephone calls. He took two or three cases, including Toronczak’s, when he left the station around 10:00 a.m. to contact people. After locating a missing person in a different case, Carlson arrived at 7007 Saranac around 1:35 p.m.

Detective Carlson requested that uniformed police officers meet him at the apartment complex. He was uncomfortable investigating this case without assistance, because of the unusual circumstance that people felt another person had something to do with the disappearance, and because of his telephone conversation with defendant.

Detective Carlson and the uniformed officers went to apartment 209 and saw it was the manager’s unit. They knocked repeatedly and rang the doorbell, but no one answered. Carlson determined they should check for a storage area. He then spoke with residents of the complex, including Mr. and Mrs. Ortega and Russell Wittmann. Mrs. Ortega knew that a woman named Beatrice had been staying in apartment 209, but had not seen her in several weeks. The Ortegas told Carlson that defendant, who was the manager, controlled the storage rooms, and they directed Carlson to the back alleyway. Wittmann, who had been working on a BMW in front of a storage room door, told Carlson the BMW belonged to defendant.

Soon defendant drove up in a different vehicle and identified himself to Detective Carlson. Although Carlson knew from Slimak’s report that Toronczak had been missing for almost three weeks, defendant maintained she had been gone for a week to a week and a half and said he thought she went to Mexico with someone. Carlson told defendant he had information that defendant had threatened to lock Toronczak in a storage room under his residence. When Carlson said he wanted to see if she was, in fact, being held there against her will, defendant replied he could not let Carlson do that. Defendant did not deny the threat or Toronczak’s presence in the storage room.

When Detective Carlson mentioned the storage room threat, he saw the flat portion of defendant’s neck begin to throb. Carlson asked defendant several times for permission to enter the storage room, saying he did not understand why defendant would not want him to check on the welfare of his child’s mother unless he knew that something was wrong. After telephoning and speaking with his supervisor, Lieutenant Collins, for five minutes, Carlson again asked defendant to either give him the keys to the storage room or open the door for him. Defendant refused. At this point, Carlson was “very concerned” about Toronczak’s whereabouts and was “feeling more and more convinced” that Toronczak was possibly in the storage area and that he had to look for her. Carlson attempted once more to get defendant’s permission to enter, without success.

Detective Carlson directed one of the uniformed officers to break the door open. They entered the first storage area, which consisted of a small entry room opening into a very large room. Carlson saw, among other things, a black nylon rope on the ground. The rope appeared to have been tied in a loop, as if to bind someone’s wrist and ankles, and it looked like the ends had been cut with a sharp instrument. Carlson also saw a unisex-type purse containing defendant’s business cards and what appeared to be controlled substances, peyote buttons and other narcotics.

Detective Carlson saw that the dirt floor was soft in spots and looked as if some spots could have been dug up. Having in mind a different case in which officers failed to detect a female buried in a box under the ground, Carlson spent 30 minutes or so thoroughly examining the dirt floor.

Detective Carlson directed the uniformed officers to inform defendant of what was found, and had defendant placed in a police vehicle. After updating Lieutenant Collins on the events, Carlson told defendant that he was not concerned about the drugs he found, but that he was concerned about the whereabouts and welfare of Toronczak and asked for permission to search the other two storage rooms. When defendant refused, the officers made a forced entry into the second room. Among the items they saw in that room was luggage with a tag bearing the name Beatrice Szulc, which Carlson knew was another name used by Toronczak. The luggage contained personal items of clothing and toiletries that someone would not be likely to leave behind if going on a trip.

Detective Carlson then decided to force entry into the third storage room without seeking defendant’s permission. As the door to this room opened, it knocked over a large metal trash can that was on a piece of cardboard. The cardboard had a red stain and, when it was moved, Carlson observed what appeared to be dried blood, two feet in diameter, extending out on the dirt floor. A hammer, a saw, and a butcher knife were near the door, and a white painted four-by-four piece of wood stained with what appeared to be blood was lying just inside the room.

Seeing these items in plain sight, Detective Carlson believed he was looking at a crime scene. He directed the officers to seal off all three rooms and sent for the homicide team. Carlson then obtained a telephonic search warrant, and the officers reentered the storage areas and seized many items of evidence, including those previously observed.

After hearing all the testimony, the trial court denied defendant’s suppression motion. The court found that Carlson acted reasonably in responding to apparently reliable information pertaining to a missing person, and that exigent circumstances justified his warrantless entry into the three storage rooms. The court also determined that the items Carlson observed when he entered the rooms had been in plain sight and properly supported the telephonic search warrant.

b. Analysis

Defendant contends that the initial warrantless police entries into the three storage rooms were unlawful, that exigent circumstances did not justify the entries, that Detective Carlson’s decision to seek the telephonic search warrant was prompted by his observations during the illegal entries, and that use of such observations tainted the warrant-authorized searches and invalidated the resulting seizures of evidence. We disagree for the reasons below.

The Fourth Amendment to the federal Constitution guarantees against unreasonable searches and seizures by law enforcement and other government officials. Because a warrantless entry into a home to conduct a search and seizure is presumptively unreasonable under the Fourth Amendment (Welsh v. Wisconsin (1984) 466 U.S. 740, 748-749), the government bears the burden of establishing that exigent circumstances or another exception to the warrant requirement justified the entry. (People v. Williams (1988) 45 Cal.3d 1268, 1300.)

As relevant here, the exigent circumstances doctrine constitutes an exception to the warrant requirement when an emergency situation requires swift action to prevent imminent danger to life. (People v. Panah (2005) 35 Cal.4th 395, 465.) “ ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ Citation. And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Citations.” (Mincey v. Arizona (1978) 437 U.S. 385, 392-393.) In this regard, “ ‘ “there is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.” ’ ” (People v. Panah, supra, at p. 465.) Generally, a court will find a warrantless entry justified if the facts available to the officer at the moment of the entry would cause a person of reasonable caution to believe that the action taken was appropriate. (People v. Duncan (1986) 42 Cal.3d 91, 97-98.) On appeal, we uphold the trial court’s factual findings if they are supported by substantial evidence, but independently review its determination that the search did not violate the Fourth Amendment. (People v. Panah, supra, at p. 465.)

We have previously recognized that a warrantless entry may be appropriate when the police “ ‘seek an occupant reliably reported as missing.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 577.) In Wharton, for instance, the defendant claimed his counsel was ineffective in failing to file a suppression motion challenging a warrantless entry by Officers Fryslie and Ybarra into the apartment defendant shared with the murder victim, which had resulted in the discovery of the victim’s body. There, the officers acted on the following known facts: earlier in the month, the police had responded to a domestic disturbance reported at the victim’s residence; earlier on the day of the entry, the victim’s neighbors had reported they had not seen her in two weeks, and a note had been left in the home asking the victim to call police, but no call was received; the police had received two calls expressing concern for her welfare; mail in the victim’s mailbox indicated she had not been home; and Officers Fryslie and Ybarra had gone to the home in response to a neighbor’s report that someone had been banging on the victim’s front door, and they found the door unlocked. (Id. at pp. 576-577.) The totality of these circumstances, we concluded, demonstrated an emergency situation sufficient to justify the officers’ warrantless entry. (Id. at p. 577.) We therefore rejected the defendant’s ineffective assistance claim because any suppression motion would have been denied. (Id. at p. 578.)

We also rejected the defendant’s further contention that, even if an emergency justified the two officers’ entry into the apartment, their “cutting open the plastic in which the victim’s body was wrapped constituted an illegal opening of a closed container which was not justified by any emergency.” (People v. Wharton, supra, 53 Cal.3d at p. 578.) Upon entering the victim’s residence the officers discovered additional suspicious circumstances, including an unplugged phone and a suicide note the defendant wrote. When the officers then found and touched a portion of the plastic wrapping at issue, they apparently thought they had found a potential body disposal site. (Ibid.) As we explained, however, it was only after the officers cut away the plastic wrapping and discovered the victim’s body that “the emergency generated by the reports of a missing person ceased (because the probable subject of the reports was no longer living) . . . .” (Ibid.) “Because there existed the possibility that the victim was still alive,” we declined to fault the officers for cutting away the plastic wrapping despite their suspicion that it contained a dead body. (Ibid.)

Similarly, in People v. Lucero (1988) 44 Cal.3d 1006, we concluded that warrantless entries into the defendant’s house by several law enforcement officers were justified because of an exigency created by two missing girls. The two girls were reported missing after they went to a park and failed to return, and a fire of unknown origin had ignited in the defendant’s house, located directly across the street from that park. (Id. at p. 1012.) After extinguishing the fire, firefighters discovered what appeared to be a large bloodstain on the living room carpet and decided it should be examined by law enforcement officers. Deputy Long and Explorer Scout Rumple were the first law enforcement personnel to enter the house without a warrant and view the blood stain, and they immediately radioed Sergeant Anton. When Anton made his warrantless entry, he had just learned that the body of one of the missing girls was discovered in the dumpster of a neighborhood grocery store. (Id. at pp. 1016-1017.)

In assessing whether evidence later recovered from the defendant’s house, car, and clothing should have been suppressed, we reviewed the totality of the circumstances and concluded the warrantless entries into the house by Long, Rumple, and Anton were justified: “The girls, their bodies, or clues to their location might be somewhere in the burning house. Thus, when the firefighters first arrived at the scene, Sergeant Anton advised Captain Bryant of the missing children and asked him to order his men into the burning house with oxygen equipment to look for the girls. The report of the bloodstain was another unusual circumstance adding weight to the suspicion that the house and the missing girls might be connected. The presence of blood also suggested that the children were in serious danger. At the time of Anton’s entry the body of one of the girls had just been found, making it likely that the second girl was in imminent danger and making discovery of her location even more urgent.” (People v. Lucero, supra, 44 Cal.3d at p. 1017.) “In combination,” we found, “these circumstances clearly created an emergency situation requiring swift action.” (Id. at pp. 1017-1018; accord, Vitek v. State (Ind. 2001) 750 N.E.2d 346, 348-349; State v. Carlson (Iowa 1996) 548 N.W.2d 138, 140-143; State v. Blades (Conn. 1993) 626 A.2d 273, 276-280.)

As in Wharton and Lucero, substantial evidence supports the trial court’s determination here that the circumstances known to Detective Carlson established an objective emergency requiring immediate action. On March 11, 1996, Carlson received a missing person report containing apparently reliable information that Beatrice Toronczak, the mother of defendant’s young child, had been missing from defendant’s apartment since approximately February 18, 1996. Carlson spoke directly with Slimak, the person making the report, and she confirmed the circumstances of Toronczak’s disappearance as related to her by Toronczak’s mother, Bartosz. Bartosz had tried unsuccessfully to locate Toronczak through defendant and others, and she could not get defendant to report Toronczak as missing. Bartosz had previously observed defendant threaten to lock Toronczak in the basement storage area of the complex. Because Bartosz believed he meant it, she insisted that Slimak tell the authorities to look in that area for the daughter. Apart from Slimak and Bartosz, neighbors at the complex confirmed that Toronczak had not been seen for several weeks and that defendant controlled the keys to the storage rooms. The significance of the foregoing information was heightened because defendant gave Carlson wrong information about the length of time Toronczak had been missing, and he exhibited no concern over her unexplained disappearance. When Carlson mentioned defendant’s threat to lock Toronczak in the basement storage area, defendant’s neck started to visibly throb, adding to Carlson’s concern. Defendant never denied making any threat, and he never denied that Toronczak was in any of the storage rooms when Carlson repeatedly sought permission to look there for her.

In light of the foregoing, we uphold the trial court’s determination that exigent circumstances justified Detective Carlson’s warrantless entries into the storage rooms, and conclude that defendant’s motion to suppress was properly denied. (People v. Panah, supra, 35 Cal.4th at p. 465.)

Defendant argues to the contrary, contending the circumstances here did not establish the requisite emergency because: (1) there were no obvious signs of an emergency, such as moans, groans, or chemical smells emanating from the storage rooms, and there had been no gunshots or fire; (2) the mere “possibility” that Toronczak was in the storage room against her will did not justify an emergency entry; (3) before his entry, Carlson did not believe he had probable cause to obtain a warrant; (4) the information regarding defendant’s supposed threat to lock Toronczak in the basement was nonspecific and did not indicate a present emergency in the storage rooms; (5) Carlson’s delays in investigating the storage rooms were not consistent with his professed belief that an emergency situation existed; and (6) even if the officers had probable cause to enter the storage rooms with a warrant, the failure to obtain a warrant made the inevitable discovery doctrine inapplicable. These contentions do not aid defendant’s position.

As explained, there is no bright line rule for determining whether exigent circumstances exist; rather, courts must approach each claim of an extraordinary situation by looking at the totality of the particular circumstances known to the searching officer. (People v. Panah, supra, 35 Cal.4th at p. 465.) Here, the absence of any information suggesting Toronczak was dead, defendant’s noticeable lack of concern over the whereabouts of his child’s mother, Bartosz’s report of, and evident belief in, defendant’s threat to lock Toronczak in the basement, defendant’s physical reaction when Carlson mentioned that threat, and defendant’s sole control over the storage rooms, all contributed to Carlson’s sense of urgency about entering the storage rooms immediately to look for Toronczak, who might have been imprisoned there against her will.

Because the totality of the circumstances must be considered, the fact that certain circumstances were not present here, such as certain noises or smells, or gunshots or fire, does not defeat the finding of an emergency. (See People v. Ortiz (1995) 32 Cal.App.4th 286, 292-293 “The absence or presence of a particular factor is not conclusive.”.) Moreover, the length of time Toronczak had been reported as missing, i.e., three weeks instead of only hours or days, did not negate the emergency nature of the situation in light of the other circumstances known to Carlson. (See People v. Wharton, supra, 53 Cal.3d at p. 577 finding exigent circumstances where victim had not been seen for two weeks.) Finally, it makes no difference that Carlson could perhaps have acted even more quickly in trying to find Toronczak, or that he subjectively believed he could not have obtained a search warrant based only on the information he possessed prior to entering the three storage rooms. That is because the relevant inquiry remains whether, in light of all of the circumstances, there was an objectively urgent need to justify a warrantless entry. (People v. Panah, supra, 35 Cal.4th at p. 465; People v. Ortiz, supra, at p. 293.)

Defendant’s motion to suppress was properly denied.

B. Guilt Phase Issues

1. LeFrere’s Testimony

Pamela LeFrere was one of defendant’s friends. On February 24, 1996, which was almost a week after Toronczak’s disappearance, LeFrere, defendant, defendant’s young son Nicholas, and others were in the storage area directly underneath defendant’s apartment. Upon seeing “some empty pits” about five feet long and two feet deep in the dirt floor, LeFrere said to defendant, “Who are you going to kill next?” Defendant did not say anything, but LeFrere noticed he “got real bug-eyed and got real nervous” and “started pacing.” On March 11, 1996, the police found bloodstained cutting tools and Toronczak’s partial remains in the storage area.

At trial, defendant raised a hearsay objection to the evidence of his conduct in response to LeFrere’s question. The trial court overruled the objection, finding the evidence admissible as an adoptive admission. (Evid. Code, § 1221.) Defendant contends this ruling constituted reversible error. We conclude the evidence did not implicate verbal expression subject to the hearsay rule.

“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Nonverbal conduct constitutes a “statement” that was made for purposes of the hearsay rule only if it was “intended by the person as a substitute for oral or written verbal expression.” (Evid. Code, § 225, subd. (b).)

Here, nothing suggests that defendant intended his physical reaction to LeFrere’s question to be “a substitute for oral or written verbal expression.” (Evid. Code, § 225, subd. (b).) Rather, LeFrere’s testimony that defendant “got real bug-eyed and got real nervous” and “started pacing” merely described nonverbal, nonassertive, emotional behavior. (See People v. Jurado (2006) 38 Cal.4th 72, 129 “defendant’s emotional displays were nonassertive conduct; People v. Snow (1987) 44 Cal.3d 216, 227 defendant’s silence upon learning of the victim’s death was not a statement under the hearsay rule and was admissible to show his prior knowledge of the killing.) The evidence was not subject to the hearsay rule.

Even if nonhearsay, “no evidence is admissible except relevant evidence.” (Evid. Code, § 350.) That standard was met here. Defendant’s conduct — consisting of acute upset to what appeared to be a flippant remark — gave rise to a reasonable inference that defendant knew killings had occurred, possibly even in the storage area, and therefore was relevant as consciousness of guilt. (See Evid. Code, §§ 210, 350; e.g., People v. Farnam (2002) 28 Cal.4th 107, 129-130, 153-154 evidence of defendant’s defiant reaction when ordered to provide hair and blood samples for testing was admissible to show consciousness of guilt.) Although relevant evidence may nonetheless be excluded when it creates a substantial danger of undue prejudice, confusion, or misleading the jury (Evid. Code, § 352), the evidence here posed no such risk.

LeFrere’s testimony describing defendant’s nonverbal conduct did not implicate the hearsay rule and was relevant to the issue of guilt without being inflammatory or misleading. It was therefore properly admitted.

Having concluded that admission of the evidence was not error, we reject defendant’s further contentions that the court’s ruling violated his state and federal rights to due process of law, a fair trial, confrontation of witnesses, and reliable guilt, special circumstance, and penalty determinations, and that it rendered his trial fundamentally unfair.

2. Admission of Victims’ Photographs

Over defendant’s objection, the trial court permitted the prosecution to introduce into evidence photographs showing the three victims while they were alive. One photograph was of Rose Albano, and the other showed Ron Stadt, Debra Stadt, and Beatrice Toronczak at a concert. Defendant contends this ruling constituted prejudicial error and violated his state and federal constitutional rights to due process, an impartial jury, a fair trial, and reliable guilt and special circumstance determinations.

We have recognized that “courts should be cautious in the guilt phase about admitting photographs of murder victims while alive, given the risk that the photograph will merely generate sympathy for the victims. Citation. But the possibility that a photograph will generate sympathy does not compel its exclusion if it is otherwise relevant. Citation. The decision to admit victim photographs falls within the trial court’s discretion, and an appellate court will not disturb its ruling unless the prejudicial effect of the photographs clearly outweighs their probative value. Citation.” (People v. Harris (2005) 37 Cal.4th 310, 331-332; see People v. Boyette (2002) 29 Cal.4th 381, 424.)

We conclude the trial court did not abuse its broad discretion in admitting the two challenged photographs. As the prosecution pointed out, there were three victims in the case, two of the victims were similar in appearance to two of the witnesses, all four had been girlfriends of defendant, and one victim and one witness had the same first name, Rose. Given these circumstances, admission of the photographs was proper to meet the prosecution’s concern that the jurors might “lose track of who these individuals are” and also to help any witnesses “identify the people that they saw in this case.” Moreover, the two photographs were not unduly prejudicial so as to outweigh their probative value; indeed, our review confirms the photographs were neutral and unremarkable and would not have engendered an emotional reaction capable of influencing the verdict. (See People v. Harris, supra, 37 Cal.4th at p. 332.) We reject defendant’s claims of error and constitutional violations.

3. Admission of Autopsy Photographs

Over defendant’s objections, the trial court allowed the prosecution to introduce into evidence photographs of various body parts of victims Albano and Toronczak. Four photographs showed the plastic bag containing Albano’s arm and leg, and others showed Albano’s arm and leg at the brushy location where they were found. Autopsy photographs showed Albano’s dismembered left arm and left leg, and a part of her jaw missing teeth. Four photographs showed Toronczak’s ten fingers, jaw parts, and teeth, which were recovered from a bucket in the storage room under defendant’s control. Defendant contends that none of these photographs was relevant and that all them should have been excluded under Evidence Code section 352 as more prejudicial than probative.

A trial court’s “decision to admit victim photographs is a discretionary matter that we will not disturb on appeal unless the prejudicial effect of the photographs clearly outweighs their probative value. Citations.” (People v. Martinez (2003) 31 Cal.4th 673, 692; see People v. San Nicolas (2004) 34 Cal.4th 614, 664.) “Murder victim photographs need not be rejected merely because they are cumulative to other evidence in the case. Citation.” (People v. Martinez, supra, at p. 692; see People v. San Nicolas, supra, at p. 665.)

The challenged photographs had significant probative value. The Albano photographs showed the location where her body parts were found. They also showed that markings on Albano’s arm and leg were consistent with them having been removed from her torso with the handsaw found in the third storage room under defendant’s apartment, and that the tie mark on Albano’s wrist could have been made by the black nylon rope found in the first storage room or by a plastic tie similar to those found cut up and stained with Toronczak’s blood in the third storage room.

Comparisons of the Albano and Toronczak photographs showed that the jaw parts of both women were missing teeth. These photographs were relevant in light of a conversation that defendant had with Debra Stadt after Ron Stadt disappeared in June 1993 and soon after Albano disappeared around Christmas that same year. In that conversation, Debra Stadt told defendant that her estranged husband had extensive dental records and could be identified by his teeth. Defendant told Debra Stadt “that was the only thing that he forgot” and that “it was the only mistake he made.” As the prosecution argued, defendant’s comments could be construed to mean he forgot to remove Stadt’s teeth after killing him so as to prevent identification of his body, but consistent with what the photographs showed, defendant sought to remove his victims’ teeth the next two times he killed.

By showing that the physical details of the body parts tended to support a connection between defendant and the Albano and Toronczak murders, the challenged photographs were relevant to the ultimate determination of guilt. (See People v. San Nicolas, supra, 34 Cal.4th at p. 665.) The record discloses that the trial court duly weighed their probative value and prejudicial effect, and our own examination of the photographs confirms that, while gruesome, they were neither unduly so nor inflammatory. Finally, although the photographs largely served to corroborate testimonial evidence, that circumstance alone did not compel their rejection. (See ibid.; People v. Martinez, supra, 31 Cal.4th at p. 692.)

4. Loretta Peer Incident

Loretta Peer was in the process of getting a divorce when she met defendant in January 1993. Defendant was interested in Peer, and asked for her telephone number. He called her, had cards delivered to her work address, and left chalk or pencil messages on her car windows. When Peer testified that defendant left a note “inside of my car on my steering wheel when the car was totally sealed,” defendant objected on grounds of relevance. The court overruled the objection, and the prosecutor elicited Peer’s testimony that defendant must have broken into her locked car, but she did not see any damage. On appeal, defendant contends the court erroneously overruled his relevance objection and admitted prejudicial evidence that he had committed an uncharged criminal act.

Evidence of a defendant’s prior criminal act generally is inadmissible when offered to prove the defendant’s conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) Such evidence is admissible, however, when relevant to prove some fact in issue (such as motive, intent, knowledge, identity, or the existence of a common design or plan), other than a disposition to commit such an act. (Evid. Code, § 1101, subd. (b).)

At trial, the prosecution was not asked to explain the relevance of the challenged testimony. In this court, respondent observes that, in light of the circumstance that Peer initially did not respond to defendant’s calls, cards, and messages, it was reasonable to infer that defendant’s motive for the break-in was to exercise control over Peer by leaving a message inside her locked car. In respondent’s view, “this tended to establish defendant’s method of solving problems by controlling the situation and being the individual in charge.” While acknowledging that breaking into a car to leave a note is not committing murder, respondent argues “it is reasonable to infer defendant’s motive to kill resulted from the seriousness of the problems the victims presented for defendant and the closer relationship between defendant and the three murder victims.”

We need not decide whether the trial court ruled erroneously, because any error was harmless. Peer’s reference to the break-in incident was very brief, and she expressed no fear or negative feelings about the incident. To the contrary, Peer testified she subsequently became friends with defendant and went to dinners, movies, and shows with him. The prosecution made no mention of the break-in incident during its closing argument.

At the same time, the circumstantial and physical evidence pointing to defendant’s guilt was overwhelming. Defendant was close to all three murder victims and had both the motive and the opportunity to kill each one.

With regard to Ron Stadt, the prosecution’s case against defendant included evidence that Stadt had intended to use evidence of defendant’s affair with Stadt’s estranged wife Debra in his child custody dispute with Debra. Debra last saw Stadt in the alley at defendant’s apartment complex on June 24, 1993, when defendant told Debra in an urgent tone of voice to leave the area. Stadt was never seen again. Defendant spoke of Stadt’s disappearance to friends, saying at various times that Stadt was killed in a fight, that he drove off into the sunset, that he would not be bothering Debra anymore, and that he was mountain lion food. After Stadt vanished, defendant was in possession of Stadt’s radar detector and car key, and he made calls to unlisted telephone numbers that had not been shared with him but had been given to Stadt.

On the Rose Albano murder count, the case included evidence that defendant wanted Albano, who was pregnant, to get an abortion and move out of his apartment. He did not want to marry Albano or be responsible for her children. Defendant reported Albano missing in two suspicious calls to the San Diego Police Department. In the first call, defendant stated Albano lived at 7007 Saranac, apartment 209 (defendant’s address) and claimed he last saw her on December 12, 1993, at around 1:00 p.m. In the second call, he gave a different address for Albano, and said he last saw her on December 21, 1993, at 7:00 a.m. Defendant never showed any concern over Albano’s disappearance and, as with Stadt, defendant gave different explanations as to where she went. On December 29, 1993, the day Albano’s partial remains were found, defendant told his sister that Albano’s mother told him Albano’s body parts had been found, even though the authorities did not inform the Albano family concerning identification of the remains until January 27, 1994. After Albano had been found murdered and the police had interrogated defendant, he gave Kimberly Skolte his money, his airline ticket to Poland, his ATM card with his PIN, his mailbox keys, and his passport, because he was concerned he was a suspect.

The case against defendant on the Beatrice Toronczak murder count was especially strong. Defendant did not care for the way Toronczak was raising their son, Nicholas. When Toronczak returned from Poland in February 1996, she moved into defendant’s apartment and displaced defendant’s then live-in girlfriend, Rose McKinney, who had to move out. As with the previous two victims, defendant told friends different things about Toronczak’s disappearance, e.g., that she ran off with a Mexican man to the Mexican border, that she probably went to Germany, and that she probably went to Las Vegas or to Poland. Defendant was not concerned that his child’s mother had vanished without a word, and he refused Toronczak’s mother’s request to file a missing person report. On March 11, 1996, Toronczak’s jaw parts and ten severed fingers, as well as bloodstained tools including a handsaw, a butcher knife, and a hammer that apparently had been used to dismember her body, were found in the third storage room underneath defendant’s apartment. Only defendant had the keys to the storage room, and his fingerprints were found inside latex surgical gloves, which apparently had been inside other gloves stained with Toronczak’s blood. McKinney later claimed defendant told her that he “did it” for them.

Results of the autopsies also linked the murders to defendant. Specifically, Albano’s severed arm and leg showed cuts that could have been made with the same handsaw found in the storage room, and a mark on her wrist indicated binding, perhaps by black nylon rope or by a plastic tie similar to those found stained with Toronczak’s blood. Moreover, the jawbones of both Albano and Toronczak were found separated from their bodies, and both were missing teeth. When Debra Stadt told defendant that her estranged husband had extensive dental records and could be identified by his teeth, defendant remarked “that was the only thing that he forgot” and “it was the only mistake he made.” As the prosecution argued, it was reasonable to construe the circumstances as indicating that, although defendant forgot to remove Stadt’s teeth to hinder identification of his body, he remembered this detail when he later killed Albano and Toronczak.

In sum, a reversal is unwarranted. Given the strength of the prosecution’s case, which included significant physical evidence, a mountain of circumstantial evidence, and defendant’s own inconsistent and self-incriminating statements, it is not reasonably probable that a different result would have been obtained absent Peer’s brief mention that defendant broke into her car to leave a note. (People v. Lindberg (2008) 45 Cal.4th 1, 26; People v. Watson (1956) 46 Cal.2d 818, 836-837.) For the same reasons, any erroneous admission of the testimony was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Lindberg, supra, at p. 26.)

5. Failure to Instruct on Voluntary Manslaughter

With respect to the count involving Ron Stadt, the trial court instructed the jury on first and second degree murder. The court, however, denied defendant’s request to give five voluntary manslaughter instructions based on provocation/heat of passion. (CALJIC Nos. 8.37 manslaughter - defined; 8.40 voluntary manslaughter - defined; 8.50 murder and manslaughter distinguished; 8.55 homicide - cause - defined; 8.72 doubt whether murder or manslaughter.) Defendant claims this omission constituted prejudicial error and violated his state and federal constitutional rights to due process, a fair jury trial, presentation of a defense, and reliable guilt and special circumstance determinations.

“In a criminal case, a trial court must instruct on general principles of law relevant to the issues raised by the evidence, even absent a request for such instruction from the parties. Citation. The obligation extends to instruction on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present, but not when there is no evidence that the offense committed was less than that charged. Citation.” (People v. Cruz (2008) 44 Cal.4th 636, 664.) Here, the trial court was required to instruct on the provocation/heat of passion theory of manslaughter as a lesser included offense of the charged murder, if substantial evidence supported that theory. (Ibid.)

“ ‘The heat of passion requirement for manslaughter has both an objective and a subjective component. Citation. The defendant must actually, subjectively, kill under the heat of passion. Citation. But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago in interpreting the same language of section 192, “this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,” because “no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.” ’ Citation.” (People v. Cole (2004) 33 Cal.4th 1158, 1215-1216.)

Here, the sum of the evidence bearing on the last known interaction between defendant and Stadt was as follows. Defendant and Ron Stadt were once best friends. By April or May 1993, Stadt had learned of an affair between his estranged wife, Debra, and defendant. Besides being hurt and in disbelief, Stadt decided he would use evidence of the affair in his dispute with Debra over child custody. On June 24, 1993, Stadt had a telephone conversation with defendant between 4:00 and 5:00 p.m. The conversation was “heated” and involved “some arguing.” After the conversation, Stadt said he was going over to defendant’s apartment to retrieve some personal items — possibly jewelry — left there by Debra. That same day, at about 6:20 p.m., Debra saw defendant and Stadt separately drive up to defendant’s apartment building. Defendant told Debra in a “fairly urgent” tone to leave, and she did. He later told Debra that he and Stadt “talked” that evening. During a subsequent interview with a deputy sheriff, defendant said that when Stadt arrived at his place on June 24, 1993, Stadt blamed him for the separation from Debra and accused defendant of being the reason why Stadt could not see his children anymore. According to Ash Darwish, defendant was ordinarily a very calm person, but on one occasion when defendant was tinting car windows, Darwish saw him go “ballistic in a phenomenal way” and destroy everything in front of him.

Whether considered separately or together, the foregoing did not furnish substantial evidence to support a determination that, if defendant killed Stadt, he did so under immediate provocation or in the heat of passion. Significantly, there was no evidence, testimonial or otherwise, indicating that Stadt did anything to provoke a violent or impassioned response from defendant when the two met at defendant’s apartment complex, or that Stadt acted in any manner to trigger such a passion as would naturally be aroused in the mind of an ordinarily reasonable person. Evidence that defendant once lost his temper in an unrelated incident did not constitute substantial evidence that he lost control on the evening in question. “Speculation is an insufficient basis upon which to require the giving of an instruction on a lesser offense.” (People v. Wilson (1992) 3 Cal.4th 926, 941.) Indeed, even if the two men argued earlier over the telephone, and even if Stadt continued to be angry at defendant over his separation and child custody problems, any conclusion that defendant suddenly and immediately reacted to something Stadt said or did is undermined by the absence of any evidence of on-the-spot explosion of violence and by the circumstance that Stadt vanished without a trace.

On this record, the trial court had no duty to instruct the jury on voluntary manslaughter, and no state or federal constitutional error occurred.

6. CALJIC No. 2.06

Over the defense’s objection, the trial court instructed the jury with CALJIC No. 2.06, as follows: “If you find that the defendant attempted to suppress evidence against himself in any manner, such as by destroying evidence or by concealing evidence, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” Defendant contends this was prejudicial error and a violation of his federal constitutional rights to due process and a fair trial. These contentions lack merit for the reasons below.

There was evidence here that the fingers and parts of the jawbone (with some teeth attached and some loose) had been removed from Toronczak’s corpse. Although the rest of the body was missing, Toronczak’s fingers and jaw parts were found together in the third storage room underneath defendant’s apartment. Only defendant had the keys to that room, and in that same location defendant’s fingerprints were found on the inside of latex gloves that fit inside other gloves stained with Toronczak’s blood. Because the jury could reasonably infer from this evidence that defendant attempted to conceal evidence by removing identifying body parts from Toronczak’s corpse before disposing of it, CALJIC No. 2.06 was properly given.

Contrary to defendant’s assertion, the instruction did not violate his rights to due process and a fair trial. As we have recognized, “CALJIC No. 2.06 benefits the defense by ‘making clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant’s guilt, and allowing the jury to determine the weight and significance assigned to such behavior.’ Citations.” (People v. Farnam, supra, 28 Cal.4th at p. 165.)

7. Judge Link’s Temporary Absence

Judge Frederic Link of the San Diego County Superior Court was the judge presiding over defendant’s trial. On the afternoon of June 30, 1997, Judge Link was absent from the trial due to “business in Sacramento.”

Judge Christine Pate was presiding in his absence when the jury returned its signed guilt phase verdict forms finding defendant guilty of the first degree murder of Toronczak (count one) and the first degree murder of Albano (count three) and finding him not guilty of the second degree murders of those two victims. Out of the presence of the jury, Judge Pate discussed with both sides the jury’s apparent confusion regarding the verdict forms. It was agreed that Judge Pate would explain to the jury that, once it had filled out the verdict forms finding defendant guilty of the first degree murders of Albano and Toronczak, the verdict forms for second degree murder should not have been filled out as to those victims. It was also agreed that Judge Pate would ask the foreperson what his intent was in filling out the forms, and if any of the other jurors disagreed with his explanation then the jury would be sent back for further deliberations. After Judge Pate ascertained it was the jury’s intention to return guilty verdicts as to first degree murder on counts one and three, she granted defendant’s motion to strike the not guilty verdicts as to second degree murder on those two counts. Judge Pate also clarified her ruling was without prejudice in the event Judge Link had any further thoughts on the matter. When Judge Link returned the following Monday, July 7, 1997, he apologized to the jury for being absent, stated he was out of town on business in Sacramento, and noted the verdict issue had been resolved.

Defendant contends on appeal that Judge Pate’s substitution in Judge Link’s absence was improper under section 1053, and that the substitution violated his state and federal constitutional rights to a jury trial and federal right to have the continuous presence of the same judge throughout his entire trial. Defendant claims the error was structural and reversible per se.

Section 1053 provides in relevant part: “If after the commencement of the trial of a criminal action or proceeding in any court the judge or justice presiding at the trial shall die, become ill, or for any other reason be unable to proceed with the trial, any other judge or justice of the court in which the trial is proceeding may proceed with and finish the trial . . . .” (Italics added.) A substitution pursuant to section 1053 does not require the defendant’s consent or violate his or her due process rights. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1211-1212.) One court has held that section 1053 was violated when a substitution occurred so that the presiding judge could attend to preexisting supervisory court responsibilities. (People v. Truman (1992) 6 Cal.App.4th 1816, 1825-1827.)

Respondent does not contend Judge Link was “unable to proceed” within the meaning of section 1053. As respondent asserts, however, defendant forfeited the issue by failing to object when: (1) Judge Link announced on June 27, 1997, that he would be absent on the afternoon of June 30, 1997, and that he planned to have another experienced judge sit in for him that afternoon; (2) Judge Pate took the bench on June 30; and (3) Judge Link explained, upon his return, that he had been out of town on business in Sacramento and noted the verdict issue had been resolved. We reject defendant’s effort to secure “a second bite at the apple” by belatedly raising his section 1053 objections. (People v. Halvorsen (2007) 42 Cal.4th 379, 429.)

Even had defendant’s state and federal contentions been preserved for review, he would not be entitled to relief. In the first place, a midtrial substitution of judges does not implicate either the federal or the state constitutional right to jury trial. (People v. Espinoza (1992) 3 Cal.4th 806, 829.)

Moreover, even assuming Judge Link’s business trip did not amount to an inability to proceed under section 1053, any possible error in his substitution was harmless. Judge Pate presided over the guilt phase deliberations for half a day, and she made no evidentiary or instructional rulings that would have required familiarity with the particulars of defendant’s case. In receiving the verdicts, Judge Pate consulted with both parties and obtained their agreement to clarify whether the jury intended to find defendant guilty of the first degree murders of Albano and Toronczak. Once she secured that clarification, she committed no error in granting defendant’s motion to strike the two second degree murder verdicts without prejudice. On this record, any conceivable error in the substitution of Judge Link was harmless beyond a reasonable doubt. (People v. Halvorsen, supra, 42 Cal.4th at p. 429 applying Chapman harmless error standard.)

C. Penalty Phase Issues

1. Sentencing for Second Degree Murder

The jury convicted defendant of three homicides — the first degree murders of Albano and Toronczak, and the second degree murder of Stadt — and also found true the single multiple-murder special-circumstance allegation. At the penalty phase, the jury was given two alternative verdict forms reflecting the choice of imposing either a single sentence of death or a single sentence of life without the possibility of parole. The verdict forms did not reflect that the identified sentence would apply only to the two first degree murders of Albano and Toronczak, and not to the second degree murder of Stadt.

Defendant does not contend it was error to allow the jury to render a single death verdict, rather than individual verdicts for each of the two capital crimes. Rather, he asserts that the forms provided, combined with the court’s failure to specify in its instructions the counts on which the penalty decision was to be based and with the prosecution’s argument describing the case as being about “three murders,” misled the jury into returning a death sentence for all three murders, including the second degree murder of Stadt. According to defendant, the jurors were obligated to determine “whether or not to impose the death penalty for two first-degree murders made worse by the fact that there were three homicides altogether.” In claiming the jurors were instead allowed to sentence him to death “for three homicides, including one second-degree murder,” defendant asserts the error violated his state and federal constitutional rights to a fair trial, due process, a reliable penalty determination, and meaningful appellate review. We are not persuaded.

In accordance with the mandate of section 190.3, the trial court instructed the jury that, in reaching its penalty decision, it must consider the various factors in aggravation and in mitigation, including the circumstances of the crime of which defendant was convicted and the special circumstances found true. (§ 190.3, factor (a); CALJIC No. 8.85.) Consistent with section 190.3 and the court’s instructions, the prosecution properly reminded the jury, without any defense objection, that it had “proved three murders, three of them.” After reviewing the circumstances of the Stadt and Albano murders, the prosecution argued, also without objection, that defendant deserved the death penalty for those two murders and the multiple-murder special-circumstance finding. The prosecution then argued that if that was not enough for the jury to vote for death, then there was another murder to consider, that of Toronczak, and that together the three murders certainly warranted a death verdict. The instructions were correct, the prosecution’s arguments were appropriate, and the jury was not misled. On this point, no state law or constitutional error occurred.

Defendant is correct, however, that the trial court entered a judgment that erroneously imposed only a single sentence — death — as to all three murder counts. Respondent agrees and acknowledges that a death sentence is not authorized for second degree murder. Accordingly, pursuant to our statutory power to modify an unauthorized sentence (§ 1260), we vacate the death sentence imposed on the second degree murder count (count two) and order the judgment modified to reflect the appropriate sentence for that count, which is a state prison term of 15 years to life. (People v. Barnwell (2007) 41 Cal.4th 1038, 1048 & fn. 7.) Contrary to defendant’s suggestion, we find it entirely unnecessary, given the circumstances of this case, to remand the matter to the trial court to allow consideration whether the authorized sentence on the second degree murder count should be stayed.

2. Failure to Give Clarifying Jury Instructions

Defendant contends the trial court gave contradictory and erroneous instructions that were confusing and failed to give the jury all the tools necessary to make the penalty determination. In particular, he faults the court for not having specifically informed the jury which of the guilt phase instructions applied to the penalty phase, such as, for example, CALJIC No. 2.01 (sufficiency of circumstantial evidence – generally), CALJIC No. 2.09 (evidence limited as to purpose), CALJIC No. 2.22 (weighing conflicting testimony), and CALJIC No. 2.82 (hypothetical questions in examining experts). This error, he claims, deprived him of his state and federal constitutional rights to due process, a fair trial, and a reliable penalty determination.

Defendant did not raise this claim below and therefore has forfeited its review. (People v. Rundle (2008) 43 Cal.4th 76, 188.) Even were we to reach the merits of the claim, we would find no error.

Here the trial court instructed the jury that “unless otherwise indicated . . . all applicable instructions given in the guilt phase will apply.” The court additionally instructed the jury to disregard only those guilt phase instructions that conflicted with the penalty phase instructions the court was about to give. Having instructed as such, the court was not obligated to repeat all the guilt phase instructions that applied to the penalty phase. (See People v. Rogers (2006) 39 Cal.4th 826, 905 to disregard all other instructions given in other phases of the trial; see People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1067; People v. Cooper (1991) 53 Cal.3d 771, 846.)

Moreover, where, as here, none of the generic CALJIC instructions is, by its terms, limited to the guilt phase, and none is contradicted by the penalty phase instructions, a reasonable jury would correctly assume those instructions continue to apply at the penalty phase. (People v. Sanders (1995) 11 Cal.4th 475, 561; People v. Wharton, supra, 53 Cal.3d at p. 600.) In sum, there is nothing to suggest the jury was misled into believing that instructions such as CALJIC Nos. 2.01, 2.09, 2.22, and 2.82 did not continue to apply at the penalty phase, and the trial court did not err in failing to give these instructions a second time.

3. Refusal of Defendant’s Lingering Doubt Instruction

Defendant contends the trial court’s refusal to give a lingering doubt instruction constituted prejudicial error and violated his state and federal constitutional rights. As the concept is sufficiently covered in CALJIC No. 8.85, we have consistently rejected state and federal law claims that a trial court must specifically instruct on lingering doubt. (People v. Zamudio, supra, 43 Cal.4th at p. 370; People v. DePriest (2007) 42 Cal.4th 1, 59-60 and cases cited.)

4. Court’s Instruction with CALJIC No. 8.85

Defendant contends the trial court violated both state law and the federal Constitution by instructing the jury with an incorrect version of CALJIC No. 8.85, the standard instruction describing the factors in aggravation and mitigation for consideration of the penalty. According to defendant, by telling the jury it “may consider, take into account and be guided by” the statutory factors in aggravation and mitigation, rather than instructing that it “shall” do so, the court failed to require the jury to consider his case in mitigation when determining his penalty. No prejudicial error occurred.

We determine the correctness of jury instructions “ ‘ “from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” Citation.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 987.) Here, even assuming the court misspoke in reading that one sentence of CALJIC No. 8.85 to the jury, the court twice read a correct version of CALJIC No. 8.88, once before and once after the closing arguments, which instructed on essentially the same point: “You shall consider, take into account, and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.” (Italics added.) Correct versions of both CALJIC No. 8.85 and CALJIC No. 8.88 were provided to the jury in written form, and were available to resolve any confusion over the matter.

Apart from the court’s instructions, the prosecution correctly argued to the jury that it must consider the statutory aggravating and mitigating factors in making the penalty decision: “There are factors that the court gave you yesterday that you shall be instructed, have been instructed, that you have to use when you determine what is the appropriate punishment, the greater or the lesser. The factors that were provided by the court yesterday I have put on a chart here. . . . These are what are called the aggravating and mitigating factors that you are supposed to be guided by. Aggravating are the bad things; mitigating are the good things, sympathetic things or good deeds he has done. And this list basically gives you the law in this area. You are to consider all of the evidence that you have been presented in this case, all of the evidence in the guilt phase, direct and cross-examination of every witness, just as you’re to consider everything in the penalty phase, direct and cross-examination. Your decision is this case is to be based upon the evidence, the testimony that you heard, not guesses, hunches, fears, unwillingness to do the right thing.” (Italics added.)

Here, each side focused on various mitigating circumstances present in the case, including defendant’s lack of prior convictions, the absence of criminal conduct for the first 33 years of defendant’s life, the respect of women and elders that defendant showed as a boy, defendant’s military service, defendant’s love for his son Nicholas, the family members who loved defendant and pleaded for his life, and the inconsistencies and contradictions in the evidence that potentially raised a lingering doubt as to defendant’s guilt. As each side reviewed the evidence, the jury was repeatedly reminded to weigh the circumstances, both the mitigating and the aggravating, to reach its penalty decision.

Considering the oral and written instructions as a whole, in conjunction with the parties’ arguments, we find there was no reasonable likelihood the jury was led to believe it could disregard defendant’s mitigating circumstances in determining the appropriate penalty. (See People v. Rundle, supra, 43 Cal.4th at p. 189; People v. Pollock (2004) 32 Cal.4th 1153, 1191-1193.)

Defendant additionally contends his federal constitutional rights were violated because the penalty instructions, and CALJIC No. 8.85 specifically, failed to advise which of the listed sentencing factors were aggravating, which were mitigating, or which could be either depending on how the jury appraised the evidence, and failed to delete inapplicable statutory mitigating factors. We have repeatedly rejected these contentions (e.g., People v. Zamudio, supra, 43 Cal.4th at pp. 372-373 and cases cited; People v. Farnam, supra, 28 Cal.4th at pp. 191-192 and cases cited), and defendant offers no persuasive reason for their reconsideration.

Finally, defendant argues the trial court erred in failing to instruct the jury it could not consider aggravating factors that were not enumerated in the statute. We have consistently rejected this argument (e.g., People v. Boyer (2006) 38 Cal.4th 412, 486 and cases cited; People v. Taylor (2001) 26 Cal.4th 1155, 1180), and do so again here.

5. CALJIC No. 8.88

In defendant’s view, the slightly modified version of CALJIC No. 8.88 used at his trial was constitutionally deficient for several reasons. We conclude there was no substantive difference between the standard instruction and the modified version given below, and therefore adhere to our decisions that have rejected similar claims, as follows.

CALJIC No. 8.88 is not constitutionally flawed or impermissibly vague because (1) it uses the phrase “so substantial” to compare aggravating factors with the mitigating factors (People v. Parson (2008) 44 Cal.4th 332, 371 and cases cited; People v. Salcido (2008) 44 Cal.4th 93, 163 and cases cited); (2) it uses the term “warrants” instead of “appropriate” (People v. Page (2008) 44 Cal.4th 1, 56; People v. Harris (2008) 43 Cal.4th 1269, 1321-1322 and cases cited); (3) it fails to instruct the jury that a life sentence is mandatory if the aggravating factors do not outweigh the mitigating factors (People v. Parson, supra, at p. 371 and cases cited; People v. Page, supra, at p. 57 and cases cited); (4) it fails to instruct that a verdict of life in prison could be returned even if the circumstances in aggravation outweighed those in mitigation (People v. Page, supra, at p. 58 and cases cited; People v. Zamudio, supra, 43 Cal.4th at pp. 372-373); and (5) it fails to instruct that neither party in a capital case bears the burden of persuasion on the penalty determination (People v. Harris, supra, at p. 1322 and cases cited; People v. Zamudio, supra, at p. 372).

6. Intercase Proportionality

Defendant contends the failure to provide for intercase proportionality review in capital cases violates his Eighth Amendment right under the federal Constitution to be protected from the arbitrary and capricious imposition of capital punishment. As defendant acknowledges, we have rejected this contention many times before. (People v. Parson, supra, 44 Cal.4th at pp. 368-369 and cases cited; People v. Page, supra, 44 Cal.4th at p. 61 and cases cited.) The same goes for the contention that the lack of intercase proportionality review violates a capital defendant’s Fourteenth Amendment right to equal protection of the law. (People v. Whisenhunt (2008) 44 Cal.4th 174, 227 and cases cited; People v. Page, supra, at p. 61 and cases cited.)

7. Challenges to California’s Death Penalty Statute and Related Instructions

Defendant raises various challenges to California’s death penalty statute and the jury instructions thereunder. Our prior decisions have rejected them repeatedly, as follows.

The death penalty statute and instructions are not unconstitutional because they fail to assign a burden of proof for finding aggravating and mitigating circumstances, or because they do not require the state to prove beyond a reasonable doubt that an aggravating factor exists (except for other unadjudicated violent criminal activity), that aggravating factors outweigh the mitigating factors, or that death is the appropriate penalty. (People v. Parson, supra, 44 Cal.4th at p. 370 and cases cited; People v. Whisenhunt, supra, 44 Cal.4th at p. 227 and cases cited.) Contrary to defendant’s assertion, nothing in Apprendi v. New Jersey (2000) 530 U.S. 466 or Ring v. Arizona (2002) 536 U.S. 584 compels otherwise. (People v. Parson, supra, at p. 370 and cases cited; People v. Whisenhunt, supra, at p. 227 and cases cited.)

The death penalty statute and instructions are not constitutionally flawed because they fail to require the state to bear the burden of persuasion regarding the penalty decision. (People v. Parson, supra, 44 Cal.4th at p. 371 and cases cited; People v. Whisenhunt, supra, 44 Cal.4th at p. 227 and cases cited.) Nor are they unconstitutional for failing to require juror unanimity on the aggravating factors. (People v. Whisenhunt, supra, at pp. 227-228 and cases cited; People v. Zamudio, supra, 43 Cal.4th at p. 373.)

8. Prosecutorial Misconduct

During its penalty phase argument, the prosecution told the jury: “When they defense counsel stand here and ask for sympathy, compassion, mercy for this man, realize that he gave none, he deserves none.” Although defendant made no objection or request for admonishment at trial, he now argues this was an improper appeal to the jury to consider vengeance as a reason for imposing the death penalty, thus constituting misconduct in violation of his state and federal constitutional rights to due process, a fair jury trial, and a reliable and individualized penalty determination.

Defendant’s failure to object and request an admonishment forfeits review of this claim. (People v. Benavides (2005) 35 Cal.4th 69, 108.) In any event, the claim fails on the merits.

After properly informing the jury that “the law recognizes that the defendant is entitled to sympathy, compassion, mercy,” the prosecution argued, based on the facts, that this particular defendant did not deserve the jury’s compassion, sympathy, or mercy. The prosecution is not guilty of misconduct when it attempts to persuade the jury that the defendant has not presented a case deserving of sympathy or mercy. (People v. Zambrano, supra, 41 Cal.4th at p. 1176; People v. Vieira (2005) 35 Cal.4th 264, 296.)

9. Cumulative Error

Defendant contends that cumulative error at both the guilt and penalty phases requires reversal. Apart from our finding that a modification of the judgment is warranted to correct the trial court’s erroneous imposition of a death sentence on the second degree murder count (count two), we have rejected nearly all of defendant’s other claims of error, and when we have found or assumed error, we have concluded defendant was not prejudiced. Whether we consider such claims individually or together, we find no prejudicial error at either phase of the proceedings.

10. International Law

Contrary to defendant’s assertions, “the California death penalty statute does not violate international law, specifically, the International Covenant on Civil and Political Rights, even assuming defendant has standing to invoke this covenant. Citations.” (People v. Parson, supra, 44 Cal.4th at p. 372.) Where, as here, a sentence of death complies with state and federal constitutional requirements, international law is not violated. (People v. Cruz, supra, 44 Cal.4th at p. 689.)

III. Disposition

We affirm the judgment of death as modified to reflect that defendant’s sentence on count two is imprisonment for 15 years to life.

BAXTER, J.

WE CONCUR:

GEORGE, C.J.

KENNARD, J.

WERDEGAR, J.

CHIN, J.

MORENO, J.

CORRIGAN, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rogers

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S064337

Date Filed: July 6, 2009

__________________________________________________________________________________

Court: Superior

County: San Diego

Judge: Frederic L. Link

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Kent Barkhurst, Deputy State Public Defender, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens, Maxine P. Cutler and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Kent Barkhurst

Deputy State Public Defender

221 Main Street, 10th Floor

San Francisco, CA 94105

(415) 904-5600

Adrianne S. Denault

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2274

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

CONSUMER PRIVACY CASES,

A120591, A120145 & A120151

(San Francisco City & County

Super. Ct. No. JCCP 4211)

INTRODUCTION

Appellants in this action are objectors to a class action settlement. They maintain that class members were not given adequate notice of the settlement, that the settlement was not fair, reasonable and adequate, and that the court erred in approving attorneys’ fees to class counsel. We conclude the court did not abuse its discretion, and affirm.

PROCEDURAL AND FACTUAL BACKGROUND

This case originated in 1999 as a suit against Bank of America, N.A. and related entities (Bank) by the Utility Consumers’ Action Network, (UCAN) acting on behalf of its affiliate the Privacy Rights Clearinghouse. The case was coordinated with two similar actions against Bank, Slayton v. Bank of America NT& SA, and Asatryan v. Bank of America NT & SA., and assigned to the Honorable Richard Kramer as the coordination trial judge. A consolidated class action complaint was filed on April 30, 2003, pursuant to court order, with named plaintiffs Donovan Collier, Juan Duron, Terry Wolbert, Ki Won Rhee, Do Young Cho and Frank Cho.

The complaint alleged causes of action for unlawful and fraudulent business practices, false or misleading advertising, invasion of privacy in violation of the common law and the California Constitution, and unjust enrichment. Plaintiffs alleged that Bank, despite representations to the contrary, disclosed personal and confidential information to third party telemarketers and direct mail marketers for a fee, to enable them to market services to plaintiffs. They alleged the confidential information disclosed included account numbers, account balances, credit limits, social security numbers and other “sensitive” information.

The parties first attempted settlement in 2004, when they engaged in three mediation sessions with former U.S. Magistrate Judge Edward Infante. The court tentatively certified a California class on March 9, 2005, but deferred ruling on a nationwide class to allow further discovery. The parties continued settlement negotiations over the years, and finally reached a settlement agreement in early 2007.

The settlement agreement provided that Bank would provide the following to class members: (1) waiver of deposited item return fees; (2) waiver of fees for telephone calls to its Voice Response Unit; (3) vouchers for a $200 discount on loan fees for class members who take out a new residential first mortgage or refinance an existing residential mortgage; and (4) for class members who had a Bank-branded consumer credit card, either 12 free months of the Card Registry Service, with a retail value of $30 or 90 days of the Privacy Assist Identity Theft Protection service, with a retail value of $17.85. The Bank guaranteed it would continue to provide these benefits to class members until the aggregate benefit reached $10.75 million. The Bank also agreed to provide a “Privacy Toolkit”; an informational package with instructions on protecting financial privacy, to every class member who requested one. The value of the Privacy Toolkit would not count toward the aggregate benefit of $10.75 million. Additionally, the settlement agreement provided that Bank would pay a total of $3.25 million to a privacy-related cy près fund.

The parties agreed that Bank would not oppose class counsel’s application for an award of attorneys’ fees and expenses to be determined by the court, but not to exceed $4 million. They also agreed that Bank would not oppose the request for an award of $5,000 to each of the six named class representatives, to be paid from “any award of attorneys’ fees and costs.”

Following hearings to consider objections, the court entered an order approving the settlement. Pursuant to the parties’ settlement agreement, the court awarded $1.75 million to the “Rose Foundation for cy près distribution to one or more non-profit entities that specialize in privacy-related research,” education, or policy development. The court also awarded a total of $1.5 million to the following entities: Center for Democracy and Technology ($253,000); Samuelson Law, Technology, & Public Policy Clinic, University of California Berkeley School of Law ($300,000); World Privacy Forum ($275,000); American Civil Liberties Union of Northern California ($300,000); Electronic Privacy Information Center ($150,000); and Consumer Action ($222,000).

The court also certified for the purposes of settlement a “Settlement Class,” as follows: “Any person who, at any time between September 9, 1995 and May 31, 2007, was a U.S. resident and ‘(1) Had a Bank of America non-business checking or savings account; (2) Was a borrower on a non-business loan issued by (or acquired by) Bank of America secured by residential real estate within the United States; or (3) Had a Bank of America branded consumer credit card and a California mailing address for purposes of communicating with Bank of America. . . .’ ”

The court entered a judgment of dismissal on October 4, 2007. Following further hearings, and after ordering supplemental submissions by the parties, the court entered a separate order awarding attorneys’ fees and expenses. The court awarded class counsel $2,907,982 in attorneys’ fees (based on a lodestar sum of $1,6671,704, with a 1.75 multiplier) and $110,373 in expenses. The fees were awarded alternatively under the common fund doctrine, and under the “private attorney general” provisions of Code of Civil Procedure section 1021.5. The court denied $951,450 in claimed attorneys’ fees and $40,000 in claimed costs, finding that certain law firms had failed to meet their burden of proving the amount of fees sought. From the award of attorneys’ fees, the court ordered that $5,000 be paid to each of the six individual class representatives.

Four objectors in the trial court filed appeals. Michael and Elizabeth Savage filed a timely appeal from the order approving settlement and the judgment of dismissal. Renee Garvin filed a timely appeal from the order approving settlement, the judgment of dismissal, and the order awarding attorneys’ fees and expenses. Elaine Savage filed a timely appeal from the order awarding attorneys’ fees and expenses and the “Order allowing filing of Order Approving Class Action Settlement Nunc Pro Tunc entered on December 4, 2007.” We consider the three appeals, raising related issues, together, and issue a single opinion.

DISCUSSION

Standard of Review

In a class action, the trial court has “broad discretion” to determine “whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper. . . .” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235.) “Our review is therefore limited to a determination whether the record shows ‘a clear abuse of discretion.’ ” (Id. at p. 235, quoting Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1802 (Dunk); see also In re Microsoft I–V Cases (2006) 135 Cal.App.4th 706, 723.)

In reviewing the fairness of a class action settlement, “ ‘due regard’ . . . ‘should be given to what is otherwise a private consensual agreement between the parties. The inquiry “must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” ’ ” (7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145, quoting Dunk, supra, 48 Cal.App.4th at p. 1801.)

In considering whether a settlement is reasonable, the trial court should consider relevant factors, which may include, but are not limited to “ ‘the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.’ ” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 128 (Kullar), quoting Dunk, supra, 48 Cal.App.4th at p. 1801; see also In re Microsoft I-V Cases, supra, 135 Cal.App.4th at p. 723.) A “ ‘presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.’ ” (Kullar, supra, 168 Cal.App.4th at p. 128, quoting Dunk, supra, 48 Cal.App.4th at p. 1802; Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52-53.)

Notice to Class

Objectors Michael and Elizabeth Savage (the Savages) argue that the notice to the class of the proposed settlement was inadequate, both in its content and method of providing notice. They maintain the description of the nature of the action in the notice to class members was “vague at best,” and that notice to class members who are former customers of Bank of America by publication rather than mailing was insufficient.

The California Rules of Court specify the content of the notice to class members and the factors the court must consider in determining the manner of notice. Rule 3.766 provides in pertinent part: “The content of the class notice is subject to court approval. If class members are to be given the right to request exclusion from the class, the notice must include the following: (1) A brief explanation of the case, including the basic contentions or denials of the parties; (2) A statement that the court will exclude the member from the class if the member so requests by a specified date; (3) A procedure for the member to follow in requesting exclusion from the class; (4) A statement that the judgment, whether favorable or not, will bind all members who do not request exclusion; and (5) A statement that any member who does not request exclusion may, if the member so desires, enter an appearance through counsel.” (Rule 3.766(d).)

The published notice to class members described the case as follows: “A settlement has been proposed in a class action lawsuit challenging Bank of America’s disclosure of information about its customers to third-party marketers and Bank of America’s communications to customers about its privacy policies. . . . This lawsuit was filed on September 9, 1999. Plaintiffs allege that Bank of America improperly disclosed its customers’ confidential information to third parties, and misrepresented the scope and nature of its customer privacy policy. Bank of America denies these allegations and contends that it fully complied with the law and its privacy policy and cardholder agreements. The settlement is not an admission of wrongdoing or an indication that any law was violated.”

The Savages claim the description of the nature of the action was too vague because it “bears no resemblance to the description of the nature of the case . . . in the complaint” and “did not put absent class members on notice that the lawsuit sought damages. . . .” They have cited no requirement that it do so. Rule 3.766(d) requires only a “brief explanation of the case,” not a restatement of the complaint. Moreover, the Savages quote only a portion of the explanation of the case in the published notice to class members, omitting the entire paragraph titled “What’s This Case About.” The notice additionally referred class members to a Web site “for more details.” The description of the action in the published notice was an adequate “brief description” of the lawsuit.

The Savages also maintain that published notice to class members who were no longer customers of Bank of America in the newspaper USA Today “did not satisfy the requirements of due process.” They claim there “is nothing in the record justifying constructive notice.”

In determining the manner of notice to class members, “the court must consider: (1) The interests of the class; (2) The type of relief requested; (3) The stake of the individual class members; (4) The cost of notifying class members; (5) The resources of the parties; (6) The possible prejudice to class members who do not receive notice; and (7) The res judicata effect on class members.” (Rule 3.766(e).) Furthermore, the rule specifically contemplates notice by publication or via the Internet. “If personal notification is unreasonably expensive or the stake of individual class members is insubstantial, or if it appears that all members of the class cannot be notified personally, the court may order a means of notice reasonably calculated to apprise the class members of the pendency of the action—for example, publication in a newspaper or magazine; broadcasting on television, radio, or the Internet. . . .” (Rule 3.766(f).) “The standard is whether the notice has ‘a reasonable chance of reaching a substantial percentage of the class members.’ ” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 251, quoting Cartt v. Superior Court (1975) 50 Cal.App.3d 960, 974.) “A large body of case law reflects the view that ‘the whole concept of a large class-action might easily be stultified by insistence upon perfection in actual notice to class-members. . . .’ ” (Hypertouch, Inc. v. Superior Court (2005) 128 Cal.App.4th 1527, 1540, quoting Philadelphia Electric Co. v. Anaconda American Brass Co. (E.D.Pa. 1968) 43 F.R.D. 452, 459.) The trial court “ ‘has virtually complete discretion as to the manner of giving notice to class members.’ ” (7-Eleven Owners for Fair Franchising v. Southland Corp., supra, 85 Cal.App.4th at p. 1164, quoting Handschu v. Special Services Div. (2d Cir. 1986) 787 F.2d 828, 833.)

Here, the court ordered three methods of notice. Members of the class who were current customers of Bank of America, a group of approximately 35 million individuals, were mailed written notice with their statements. In order to give notice to class members who were no longer customers of Bank of America, the court ordered notice to be published in USA Today newspaper on June 21, 2007, and posted on a settlement Web site, (as of June 29, 2009). As the court acknowledged, giving notice to former customers who were class members “was a problem, the people may no longer be living or may have moved away.” “One–time publication in the publication that we selected was adequate and reasonable. Two times might have given more of a chance, but the whole thing was hit and miss, and the job of this Court is to just do what seems reasonable and to balance off costs of giving notice.” “We can’t assure actual notice to everybody.”

Mailing notice to 35 million class members, combined with providing notice by publication in a national newspaper and via a Web site, certainly provided a “reasonable chance of reaching a substantial percentage of the class members.” (Wershba v. Apple Computer, Inc, supra, 91 Cal.App.4th at p. 251.) The Savages have demonstrated no abuse of discretion in this regard.

Adequacy of Representation

The Savages assert that class counsel and the class representatives did not provide adequate representation of the class, warranting reversal of the order approving the final settlement. They claim this was due to “numerous conflicts between the Class Representatives and the national class.”

The Savages first allege that the class representatives had a conflict of interest with all other class members because the settlement agreement included a $5,000 payment to each of them. They claim that the $5,000 was not a “service award,” but “was, in fact, an incentive payment to keep the named plaintiffs from objecting to the settlement.” In seeking court approval of the settlement agreement, plaintiffs’ counsel sought $5,000 “service awards” for each named class representative. In a declaration, counsel stated that the class representatives “filed suit on behalf of members of the Class, responded to discovery requests, and sat for depositions . . . devoting a significant amount of time and energy.” .

While there has been scholarly debate about the propriety of individual awards to named plaintiffs, “incentive awards are fairly typical in class action cases. (See 4 William B. Rubenstein et al., Newberg on Class Actions § 11:38(4th ed. 2008); Eisenberg & Miller, Incentive Awards to Class Action Plaintiffs: An Empirical Study (2006) 53 U.C.L.A. L.Rev. 1303 finding 28 percent of settled class actions between 1993 and 2002 included an incentive award to class representatives).” (Rodriguez v. West Publishing Corp. (9th Cir. 2009) 563 F.3d 948, 958.) These awards are discretionary, and “are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general.” (Id. at pp. 958-959, citing In re Mego Financial Corp. Securities Litigation (9th Cir. 2000) 213 F.3d 454, 463.) “A ‘service fee’ to the class representatives has been upheld in at least one California case. (Bell v. Farmers Ins. Exch. (2004) 115 Cal.App.4th 715, 726 . . . affirming without discussion order for ‘service payments to the five named plaintiffs compensating them for their efforts in bringing the suit’).” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) 14:146.10, p. 14-88.)

Federal courts have established criteria “courts may consider in determining whether to make an incentive award which include: 1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 4) the duration of the litigation and; 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation.” (Van Vranken v. Atlantic Richfield Co. (N.D. Cal. 1995) 901 F.Supp. 294, 299.) These “incentive awards” to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit. (See Dornberger v. Metropolitan Life Ins. Co. (S.D.N.Y. 2001) 203 F.R.D. 118, 124-125.)

The Savages have pointed to nothing in the record suggesting that the $5,000 awards to the class representatives were sought by counsel to induce them not to object to the settlement, or were out of proportion to the effort and time they expended in the litigation. Each class representative submitted a declaration detailing the efforts made on behalf of the class. Given the evidence before the court that each representative had, over the course of the lengthy litigation, responded to discovery requests, been deposed, assisted with investigation, and reviewed documents and pleadings, we find no abuse of discretion in these awards.

The Savages also assert that there was a conflict between the class representatives and the class members because the class representatives are all from California. They claim that this resulted in preferential treatment of California residents, noting that “only those class members who have California mailing addresses will be entitled to receive the Credit Card Services.” The Savages neglect to mention that Bank credit card customers who had mailing addresses outside of California were not part of the class. Accordingly, the fact that these out-of-state credit card customers received no “credit card services” under the settlement agreement was not due to any conflict of interest on the part of the class representatives. Similarly, the Savages claim that the fact “almost all of the recipients of the privacy-related cy près fund are California entities primarily serving California residents,” demonstrates unfairness. The Savages’ argument, however, concedes that not all of the cy près fund entities are based in California. Given this concession, and their failure to demonstrate any unfairness, we fail to see how this portion of the settlement agreement provides for preferential treatment.

The Savages also assert that the settlement benefits are allocated unfairly because “a husband and wife are precluded . . . from having the same recoveries.” The settlement agreement provides that joint owners of accounts, such as a husband and wife, “may collectively claim the same benefit(s) with respect to such account(s) that a single owner of such account(s) could claim.” Accordingly, the settlement benefits are rationally based on each account, regardless of the number of owners. There is no disparate treatment based on the status of being a husband and wife.

Adequacy of Court’s Review of Settlement Agreement

Finally, the Savages argue that the court erred in approving the settlement agreement because it “did not and could not have properly conducted the necessary analysis.” They aver that the court provided “no explanation of how the strengths and weaknesses of the settlement were evaluated or upon what grounds the Superior Court concluded the settlement was fair.” They further claim that the court had “no evidence” of the “best case scenario” regarding potential damages and the plaintiffs’ chance of success, and failed to consider the actual cost of the settlement to Bank.

The Savages’ claim ignores both the standard of review and the factors the trial court may consider. “The settlement or fairness hearing is not to be turned into a trial or rehearsal for trial on the merits” of the plaintiffs’ claims. (7-Eleven Owners for Fair Franchising v. Southland Corp., supra, 85 Cal.App.4th at p. 1145.) “Our task is limited to a review of the record to determine whether it discloses a clear abuse of discretion when the trial court’s determination of fairness is challenged on appeal. We do not substitute our notions of fairness for those of the trial court or the parties to the agreement. Citation. ‘To merit reversal, both an abuse of discretion by the trial court must be “clear” and the demonstration of it on appeal “strong.” ’ ” (In re Microsoft I-V Cases, supra, 135 Cal.App.4th at p. 723, quoting 7-Eleven Owners for Fair Franchising, supra, at p. 1146.)

The settlement agreement here met the four Kullar requirements entitling it to a “presumption of fairness.” (Kullar, supra, 168 Cal.App.4th at p. 128, citing Dunk, supra, 48 Cal.App.4th at p. 1802.) Experienced counsel negotiated the settlement after seven years of litigation, including extensive investigation and discovery. The court found that the settlement was “the product of arm’s-length negotiations,” and only a very low percentage, approximately .000454 percent, of the over 35 million class members objected.

The court, moreover, contrary to the Savages’ claim, conducted an extended analysis of the fairness of the settlement. First, the court considered the strength of the plaintiffs’ case, including the unsettled state of the law on “what privacy rights exist,” the difficulty in quantifying damages, and the evidentiary problems in determining causation. The court explained, “we always recognized that whatever decision might be made regarding the nature of the privacy right would probably go to the State Supreme Court for final determination, a very time-consuming and very expensive proposition. None of that would have anything to do with the monetary value of such rights, only what the rights might be, because some of the information that was given away was, I think everybody would concede, available from other sources. Anybody who’s listed in the phone book would have their name and number available to telemarketers. True, it’s harder to get it out of a phone book than from a bank list. But there were questions as to what is the nature of any privacy right that might exist here, a very difficult problem for this case.” The court also considered the difficulties in proving causation and damages, noting “assuming that being telephoned by a telemarketer, which is where all this went, was also an element of wrong that resulted from an alleged wrongful distribution of information, how do you quantify that? If somebody bought something from a telemarketer, did that person get damaged at all? Maybe they were benefitted.” The court also explained that a consumer receiving a telemarketing call “had no way of knowing whether that call resulted from the sale of . . . information by Bank of America, or by Wells Fargo, or by American Express, or by Sears, or by many of the other defendants that I had in a whole batch of cases. From a legal perspective, that comes down to causation.”

The Savages also urge that there was no evidence before the court regarding the cost of the settlement to Bank. They claim that “a reasonable inference may be drawn that the settlement is not costing Bank anything other than legal fees and the cost of noticing the settlement.” First, the Savages ignore the portion of the settlement agreement requiring $3.25 million to be paid by Bank to the cy près fund. Second, they have cited no authority for their claim that the cost to a settling defendant, rather than “ ‘the amount offered in settlement’ ” (Kullar, supra, 168 Cal.App.4th at p. 128), must be considered. As the court explained, “I don’t believe that cost to Bank is an appropriate measure. . . . I recognize it will certainly cost the bank less than the face value, but that’s how most cases get settled; it’s called creating value. If defendant can give something that costs X to a plaintiff that’s worth two times X to the plaintiff, that is an economically rational way of, quote, creating money and justifying a settlement. . . . Whether, indeed, that costs the bank $10 million doesn’t matter. It’s good value. It’s fair, adequate, and reasonable, which is the standard here.”

“Ultimately, the trial court’s determination is nothing more than ‘an amalgam of delicate balancing, gross approximations and rough justice.’ Citation.” (Dunk, supra, 48 Cal.App.4th at p.1801.) The Savages have demonstrated no abuse of discretion in approval of the class settlement terms.

The Attorneys’ Fees Award

Appellants Renee Garvin (Garvin) and Elaine Savage attack the court’s award of attorneys’ fees to class counsel. We first note that neither Garvin nor Savage challenge the total amount of the fee award in this matter, nor do they contend here that the award was excessive in light of the recovery to the class membership. Rather, they contend that any settlement process that purports, as here, to separately provide for fees is a legal fiction which is pernicious and unethical, and inherently unfair to class members. Garvin also contends that the difference between the amount awarded by the trial court in this instance ($3,018,355 inclusive of expenses) and the maximum amount of $4 million allowed by the settlement agreement was a surplus which “under law belonged to the class.” We disagree as to both contentions, and will affirm the award.

The provisions Garvin finds so inherently objectionable are contained in paragraph 7(d) and paragraph 10 of the settlement agreement. They provide that class counsel would seek court approval for payment, by Bank of America, of not more than $4 million dollars for attorneys’ fees and costs, and that Bank of America would not oppose such an application. Bank of America reserved the right to seek to withdraw from the settlement if the court awarded a greater amount, but the settlement was not otherwise contingent on the fee determination. An attorneys’ fee agreement of this type is sometimes referred to as a “clear sailing agreement.” (See Lealao, supra, 82 Cal.App.4th at p. 32; Weinberger v. Great Northern Nekoosa Corp. (1st Cir.1991) 925 F.2d 518, 520, fn. 1.)

Garvin claims that the “ ‘separate’ payment scheme is a breach of class counsel’s fiduciary responsibility to the class because it puts class counsel’s interests in maximizing their fee ahead of class counsel’s responsibility to maximize the class’s recovery” and insists that this position “has been enshrined into class action law at both the federal and State of California level.” While it is true that the propriety of “clear sailing” attorneys’ fee agreements has been debated in scholarly circles, (see Henderson, Clear Sailing Agreements: A Special Form of Collusion in Class Action Settlements (2003) 77 Tul.L.Rev. 813, 815-816; Herr, Manual for Complex Litigation (4th ed. 2008) §§ 21.662, 21.71, pp. 522-524, 533-534) commentators have also noted that class action “settlement agreements typically include a ‘clear sailing’ clause.” (Alexander, Rethinking Damages in Securities Class Actions (1996) 48 Stan.L.Rev. 1487, 1534.) In fact, commentators have agreed that such an agreement is proper. “An agreement by the defendant to pay such sum of reasonable fees as may be awarded by the court, and agreeing also not to object to a fee award up to a certain sum, is probably still a proper and ethical practice. This practice serves to facilitate settlements and avoids a conflict, and yet it gives the defendant a predictable measure of exposure of total monetary liability for the judgment and fees in a case. To the extent it facilitates completion of settlements, this practice should not be discouraged.” (4 Newberg et al., on Class Actions, supra, § 15:34, p. 112, fn. omitted.)

Garvin acknowledges the absence of any evidence here of misconduct by class counsel, or of any collusion between counsel and defendant Bank of America in negotiation of the fees. Garvin nevertheless maintains that this court “must set up a structural mechanism that protects against the dangers of class counsel’s and defendant’s manipulation of the settlement process,” asserting that “this is an issue about procedural temptation and fiduciary responsibility, not about evidence of misconduct in a given settlement negotiation. . . . . . . the potential for abuse is the issue.” (Italics added.)

Aside from the question of whether this is an argument better addressed to the Legislature, we find no federal or California authority that has adopted Garvin’s argument, and Garvin cites none. Her assertion that the practice has been “condemned” in the federal Manual for Complex Litigation is simply incorrect. The section cited by Garvin, in context, provides that “If an agreement is reached on the amount of a settlement fund and a separate amount for attorney fees and expenses, both amounts must be disclosed to the class. Moreover, the sum of the two amounts ordinarily should be treated as a settlement fund for the benefit of the class, with the agreed-on fee amount constituting the upper limit on the fees that can be awarded to counsel. The total fund could be used to measure whether the portion allocated to the class and to attorney fees is reasonable.” (Manual for Complex Litigation, supra, § 21.71, p. 525, italics added.) Far from condemning the practice of separate agreement on fees, the Manual acknowledges such provisions, and merely requires that the total settlement amount, including fees, be used as a yardstick to measure the reasonableness of the fees. Similar fee agreements have been implicitly approved in Dunk, supra,48 Cal.App.4th 1794 Defendant agreed to pay attorneys’ fees and costs not to exceed $1.5 million; remanded to trial court only to determine the amount of fees using a lodestar analysis; Lealao, supra, 82 Cal.App.4th at p. 24 Defendant agreed to pay “reasonable attorney fees as determined by the court”; remanded for consideration of additional factors in determining the amount to be awarded; Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615 “fee shifting” agreement for separate fees to be paid by defendant; and Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123 000 to the extent approved by the court; see also Zucker v. Occidental Petroleum Corp. (9th Cir. 1999) 192 F.3d 1323, 1325 000. It is further difficult to envision how the specter of attorney malfeasance that she invokes would be laid to rest were the prophylactic rule she advocates actually adopted. The Manual for Complex Litigation offers a caveat on negotiation of a lump sum settlement covering both class claims and attorney fees, observing that “although there is no bar to such arrangements, the simultaneous negotiation of . . . attorney fees creates a potential conflict.” (Manual for Complex Litigation, supra, § 21.71, p. 525, fn. omitted.) If fees were not negotiated simultaneously, but instead were to be subsequently determined by the court as a portion of a lump sum, as Garvin appears to suggest, any argument by counsel to enhance his or her fees from a “common fund” beyond a base lodestar amount would of necessity diminish the recovery of the class, again engendering the same conflict of interest she claims occurs here.

Our courts have always been cognizant of the inherent tension between the interests of class membership and counsel in settlement of class action litigation. “ ‘In any class action there is always the temptation for the attorney for the class to recommend settlement on terms less favorable to his clients because a large fee is part of the bargain.’ ” (Apple Computer, Inc. v. Superior Court, supra, 126 Cal.App.4th at p. 1265.) For this reason the majority of courts have found, for example, that it is impermissible to have a class representative too closely associated with the class attorney. (Id. at p. 1264, citing Susman v. Lincoln American Corp. (7th Cir. 1977) 561 F.2d 86, 90-91.) It has also been recognized that once an agreement to settle is reached, the interests of class counsel and defendant are no longer necessarily adverse. (See In re General Motors Corp. Pick-Up Truck Fuel Tank (3rd Cir. 1995) 55 F.3d 768, 819-820 “ ‘a defendant is interested only in disposing of the total claim asserted against it; . . . the allocation between the class payment and the attorneys’ fees is of little or no interest to the defense.’ . . . The divergence in financial incentives between the class and counsel creates the ‘danger . . . that the lawyers might urge a class settlement at a low figure or on a less-than-optimal basis in exchange for red-carpet treatment for fees.’ ”.)

Because of the potential for fraud, collusion or unfairness thorough judicial review of fee applications is required in all class action settlements and the fairness of the fees must be assessed independently of determining the fairness of the substantive settlement terms. (Dunk, supra, 48 Cal.App.4th at pp. 1808-1809.) Although presenting no evidence of any abuse here, Garvin nevertheless claims that “trial court discretion is not an adequate protection against the settling parties’ ability to sacrifice class-member interests to benefit themselves.” Garvin further asserts that “because of trial courts’ proclivity to approve class action settlements based upon the parties’ representations, this Court cannot rely on individual trial court judges to weed out self-interested behavior by the settling parties.”

We are unwilling to make any such assumptions. Instead, we presume that our trial judges are well aware of their responsibilities as a “fiduciary” for the protection of absent class members (7-Eleven Owners for Fair Franchising v. Southland Corp., supra, 85 Cal.App.4th at p. 1151) “ ‘whose rights may not have been given due regard by the negotiating parties’ ” (Dunk, supra, 48 Cal.App.4th at p. 1801, quoting Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 F.2d 615, 624.) The court has a duty, independent of any objection, to assure that the amount and mode of payment of attorneys’ fees are fair and proper, and may not simply act as a rubber stamp for the parties’ agreement. (See Garabedian v. Los Angeles Cellular Telephone Co., supra, 118 Cal.App.4th at pp. 128-129.) “ ‘The evil feared in some settlements-unscrupulous attorneys negotiating large attorney’s fees at the expense of an inadequate settlement for the client—can best be met by a careful . . . judge, sensitive to the problem, properly evaluating the adequacy of the settlement for the class and determining and setting a reasonable attorney’s fee . . . .’ ” (Zucker v. Occidental Petroleum Corp., supra, 192 F.3d at pp. 1328–1329 & fn. 20.) Garvin fails to convince us that California trial judges are incapable of performing, or unwilling to perform, these obligations, or that the trial judge here failed to do so.
We also start from the proposition that the “ ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ ” (Serrano v. Priest (1977) 20 Cal.3d 25, 49; Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579.) For this reason “our review of the amount of attorney fees awarded is deferential.” (In re Vitamin Cases (2003) 110 Cal.App.4th 1041, 1051-1052; see also PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) We apply an abuse of discretion standard. (Lealao, supra, 82 Cal.App.4th at p. 25.) Fees approved by the trial court are presumed to be reasonable, and the objectors must show error in the award. (Dunk, supra, 48 Cal.App.4th at p. 1809.)

Turning to the fee determination made in this case, we find no error in the award. Garvin makes no specific objection here to the amount of the award, and in fact argued in the trial court that there was no “common fund” justifying a percentage recovery, and that a “lodestar” approach should be used in calculating fees. Garvin argued below that the supporting evidence for the fee rates and amounts was inadequate. Considering these objections, and expressing its own concern that support was lacking for some claims, the court conducted two subsequent hearings to obtain and review the declarations and documentary support for the requests. The trial court then used a lodestar analysis to determine the base fee, and applied a multiplier to calculate the final award. “ ‘ “The primary method for establishing the amount of ‘reasonable’ attorney fees is the lodestar method. The lodestar (or touchstone) is produced by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate. Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative ‘multiplier’ to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.” Citation. “The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” Citation. Under certain circumstances, a lodestar calculation may be enhanced on the basis of a percentage-of-the-benefit analysis. Citation.’ Citation.” (In re Vitamin Cases, supra, 110 Cal.App.4th at p. 1052.) This approach “anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) “ ‘ “Anchoring the analysis to this concept is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts.” ’ Citation.” (In re Vitamin Cases, supra, at p. 1058.) The trial court properly used the lodestar approach here, requiring the plaintiff’s law firms to submit detailed support for their fee claims, and denying those claims he found unsupported.

It may be appropriate in some cases, assuming the class benefit can be monetized with a reasonable degree of certainty, to “cross-check” or adjust the lodestar in comparison to a percentage of the common fund to ensure that the fee awarded is reasonable and within the range of fees freely negotiated in the legal marketplace in comparable litigation. (Lealao, supra, 82 Cal.App.4th at pp. 49–50; see also Wing v. Asarco, Inc. (9th Cir. 1997) 114 F.3d 986, 990.) While the court has discretion to do so where appropriate, it is not required. (Lealao, at pp. 49-50; Ramos v. Countrywide Home Loans, Inc., supra, 82 Cal.App.4th at p. 628.) Further, a fee award may not be justified solely as a percentage of the recovery when that award will not come from the settlement fund. (In re Vitamin Cases, supra, 110 Cal.App.4th at p. 1060.) Regardless of whether attorneys’ fees are determined using the lodestar method or awarded based on a “percentage-of-the-benefit” analysis under the common fund doctrine, “ ‘the ultimate goal . . . is the award of a “reasonable” fee to compensate counsel for their efforts, irrespective of the method of calculation.’ Citations.” (Apple Computer, Inc. v. Superior Court, supra, 126 Cal.App.4th at p. 1270.) It is not an abuse of discretion to choose one method over another as long as the method chosen is applied consistently using percentage figures that accurately reflect the marketplace. (Chavez v. Netflix, Inc., supra, 162 Cal.App.4th at pp. 65-66.)

As Justice Kline observed in Lealao, what constitutes a reasonable fee in a representative action is a complex question to which there are no easy answers. (Lealao, supra, 82 Cal.App.4th at p. 53.) The methodology used by the trial court was consistent with applicable law, and no abuse of discretion is shown.

The Claimed “Surplus” from the Fee Award

Despite Garvin’s assertion in the trial court that there was no “common fund” on which to base attorney’s fees, she nevertheless argues here that the attorneys’ fees were a component of the class recovery, and that the difference between the fees and costs actually awarded ($3,018,355) and the maximum amount that Bank of America agreed to pay ($4 million) constitutes a “surplus” belonging to the class members. She contends that “the class had a right to what Defendant made available to settle the litigation” and that therefore there is a sum of $981,645 due to the class. (Emphasis omitted.)

She claims here, as she did in the trial court, that that the Manual for Complex Litigation supports this rather unique theory. It does not. As discussed above, Garvin’s citation from the Manual that “the sum of the two amounts class settlement and fees ordinarily should be treated as a settlement fund for the benefit of the class” (Manual for Complex Litigation, supra, § 21.71, p. 525) is taken out of context and does not stand for the proposition she urges. As previously noted, the Manual goes on to explain that the two amounts are treated as a “settlement fund” so that the “total fund could be used to measure whether the portion allocated to the class and to attorney fees is reasonable.” (Ibid.) As the trial court also observed, nothing in the Manual for Complex Litigation suggests that any reduction in the claimed attorneys’ fees be awarded to the class. “The citation of the Complex Litigation Manual does not establish otherwise. . . . . . . It doesn’t say what you say it says, period. It does not allow the Court to restructure the deal of the parties, so I’m not disregarding a thing.”

Garvin’s reliance on Staton v. Boeing Co. (9th Cir. 2003) 327 F.3d 938, is similarly misplaced. In Staton, an employment discrimination class action, the parties negotiated the amount of attorneys’ fees as part of the settlement between the class and the defendant, and included as a term of the proposed decree the specific amount of attorneys’ fees that class counsel would receive. (Id. at pp. 944-945.) Rejecting that approach, the court held that in a case which involved both a statutory fee-shifting provision and an actual or putative common fund it would be permissible to either negotiate and settle the amount of statutory fees along with the merits of the case (with judicial approval of fees consistent with the reasonableness standard), or alternatively to negotiate and agree to the value of a common fund (including an estimated hypothetical award of statutory fees) and then apply to the court for an award from the fund, using common fund fee principles. (Id. at p. 972.) In the latter circumstance, where there is a single “common fund,” after the court determines the fee amount “all the remaining value of the fund belongs to the class rather than reverting to the defendant.” (Ibid.) That is not the situation presented here. Even those cases that have treated fees as part of a “constructive common fund” or a “package deal” have done so only for purposes of assessing the total value of a settlement, and to compare the allocation of benefits between counsel and the class. (See In re General Motors Corp. Pick-Up Truck Fuel Tank, supra, 55 F.3d at p. 820; Apple Computer, Inc. v. Superior Court, supra, 126 Cal.App.4th at p. 1269.) Simply put, there is a complete absence of any authority supporting Garvin’s position.

Garvin’s arguments that this creates a “windfall” for the defendant, and a disincentive for class members to raise objections to the fee again miss the mark. Under the terms of the agreement before us, the defendant merely established the outer limits of its liability for fees, and agreed not to oppose a fee application within the defined range, without conceding the propriety of any particular amount. A court must still determine the reasonableness of the fee, and must do so whether or not there is an objection presented from the class. (Garabedian v. Los Angeles Cellular Telephone Co., supra, 118 Cal.App.4th at p. 129.) For the reasons previously stated, we likewise reject Garvin’s allegation that there is a “judicial predisposition to go along with the parties’ ‘deal’ ” and that the fee structure here is part of a strategy by the plaintiff’s class action bar to “disincentivize judicial scrutiny of their fee request.” As Garvin admits, the court here did reduce the fee request, and we do not presume that any other trial judge would take the cavalier and dismissive approach to this serious task that Garvin suggests.

Objectors’ Claim for Attorneys’ Fees and Costs on Appeal

Garvin seeks attorneys’ fees and costs on appeal, claiming that a “class member/objector who has benefitted his or her class or the class action mechanism generally is entitled to an award of reasonable attorneys’ fees and costs.” “There is no direct authority in California applying the substantial benefit doctrine to award attorney fees to an objector . . . though a number of federal courts have endorsed use of the doctrine to award attorney fees to an objector whose actions substantially benefit class members. . . . The leitmotiv of all these opinions is that the objector must establish his or her efforts produced a concrete benefit for the class, allowing it to recover more (or otherwise be in an improved position) than it would have in the absence of the objectors’ efforts.” (Consumer Cause, Inc. v. Mrs. Gooch’s Natural Food Markets (2005) 127 Cal.App.4th 387, 398.) Garvin has made no showing of benefit to the class in pursuing this appeal, and we therefore deny the request.

DISPOSITION

The judgment is affirmed.

_________________________

Bruiniers, J.*

We concur:

_________________________

Jones, P. J.

_________________________

Simons, J.

* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Trial Court: San Francisco Superior Court

Trial Judge: Honorable Richard A. Kramer

Coughlin, Stoia, Geller, Rudman & Robbins, Pamela M. Parker and Bonny E. Sweeney; Altshuler Berzon LLP, Michael Rubin and Peter E. Leckman counsel for Plaintiffs and Respondents Utility Conusmers’Network, et al.,

Law Offices of Lawrence W. Schonbrun, Lawrence W. Schonbrun counsel for Plaintiff Class Member/Objector and Appellant Rene Garvin

Law Offices of John M. Lusk, Jr., John M. Lusk Jr., counsel for Plaintiff Class Member/Objector and Appellant Elaine Savage

William F. Abbott; LeClair & LeClair, P.C., L. Richard LeClair, III, counsel for Objectors and Appellants Michael T. Savage and Elizabeth Savage

Calvo & Clark LLP, Arne D. Wagner; Morrison & Forester LLP, Maya Hoffman counsel for Defendants and Respondents Bank of America et al.

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

JOSH SHAW et al.,

Plaintiffs and Appellants,

v.

THE PEOPLE ex rel. JOHN CHIANG, as Controller, etc. et al.,

Defendants and Appellants.

C058479

(Super. Ct. No. 07CS01179)

APPEAL from a judgment of the Superior Court of Sacramento County, Jack Sapunor, Judge. Affirmed in part and reversed in part.

Nielsen, Merksamer, Parrinello, Mueller & Naylor, Richard D. Martland, Kurt Oneto, James R. Parrinello, Chris Skinnell for Plaintiffs and Appellants.

Richard A. Marcantonio and Guillermo Mayer for Public Advocates as Amicus Curiae on behalf of Plaintiffs and Appellants.

Edmund G. Brown, Jr., Attorney General, Christopher E. Krueger, Senior Assistant Attorney General, Constance L. Lelouis, Supervising Deputy Attorney General, Daniel J. Powell, Deputy Attorney General, for Defendants and Appellants.

This case considers the effect on the state budgetary process of a bond initiative measure (Proposition 116) almost two decades after it was approved by voters. Specifically, we consider the legality of the Legislature’s creation of the Mass Transportation Fund, the legality of the Legislature’s transfer of a portion of spillover gas tax revenue to the Mass Transportation Fund and the Legislature’s appropriation of $1.2 billion from the Mass Transportation Fund and the Public Transportation Account for the 2007-08 budget year in light of Proposition 116.

Josh Shaw, an individual California taxpayer and elector, and the California Transit Association, a nonprofit corporation, (hereafter petitioners) filed a petition for writ of mandamus, declaratory and injunctive relief against John Chiang, the California State Controller, and Michael C. Genest, California Director of Finance, (hereafter the State) challenging the Legislature’s actions. The trial court generally upheld the challenged actions, rejecting only the Legislature’s transfer of $409 million from the Public Transportation Account to the General Fund for past debt service payments on Proposition 108 bonds as not being consistent with the purposes of the Public Transportation Account as described by Proposition 116. Petitioners appeal from the trial court’s rejection of their other claims. The State cross-appeals the trial court’s judgment regarding the $409 million transfer.

We agree with petitioners that the trial court improperly upheld the challenged legislative actions. Rejecting the position of the State in its cross-appeal, we also conclude the trial court properly invalidated the $409 million transfer. We shall reverse in part and affirm in part.

BACKGROUND

An understanding of the Retail Sales Tax Fund and certain transfers from such fund, Proposition 116, Proposition 2, Proposition 42 and Proposition 1A is essential to this opinion. These statutes and propositions are discussed at length where pertinent to the appeal, but we begin with a short overview.

California uses state retail sales and use tax revenues to fund the general operation of state government. With a few exceptions not relevant here (Rev. & Tax Code, §§ 7101, 7101.3), state retail sales and use-tax revenues are deposited in the state treasury to the credit of the Retail Sales Tax Fund. (Rev. & Tax Code, § 7101.) Revenue and Taxation Code section 7102 (section 7102) governs the withdrawal and transfer of funds from the Retail Sales Tax Fund. (§ 7102.) For many years, subdivision (a) of section 7102 has provided that a portion of the sales and use taxes from motor vehicle fuel, as determined by a specified formula (hereafter spillover gas tax revenue), must be transferred from the Retail Sales Tax Fund to the State Transportation Fund (Stats. 1971, Reg. Sess., ch. 1400, pp. 2770, 2785). The account receiving the spillover gas tax revenue within the State Transportation Fund has been renamed several times. Since 1997, however, the account has been called the Public Transportation Account in the State Transportation Fund (PTA). (Stats. 1997, ch. 622 (S.B. 45), § 32; Pub. Util. Code, § 99310.) This appeal concerns the spillover gas tax revenue that would have, but for the challenged amendments and statutes, been transferred to the PTA or would have remained in the PTA.

Proposition 116

At the June 1990 Primary Election, California voters adopted Proposition 116 (known as the Clean Air and Transportation Improvement Act of 1990), an initiative measure authorizing a general obligation bond issue of nearly $2 billion to fund primarily passenger and commuter rail infrastructure. (Pub. Util. Code, §§ 99600, 99601; Ballot Pamp., Primary Elec. (June 5, 1990) Official Title and Summary, p. 36.) Proposition 116 specified its bond funds could be spent on rail rights-of-way, stations and facilities, rolling stock, grade separations, related capital expenditures, paratransit vehicles, bicycle facilities, water-borne ferry vessels and facilities, and the railroad technology museum. (Pub. Util. Code, §§ 99613, 99620-99653.) The bonds were general obligation bonds, backed by the State of California (Pub. Util. Code, §§ 99690.5, 99691.5) with money appropriated from the General Fund to pay the principal and interest as those came due. (Pub. Util. Code, §§ 99693.5, 99694.) The voters expressed their intent that the “bond funds shall not be used to displace existing sources of funds for rail and other forms of public transportation, including, but not limited to, funds that have been provided pursuant to . . . , the PTA, . . . ; and that funding for public transit should be increased from existing sources including fuel taxes and sales tax on fuels.” (Pub. Util. Code, § 99611 (section 99611).)

Proposition 116 amended Public Utilities Code section 99310.5 (section 99310.5) to read:

“(a) The account the PTA is hereby designated a trust fund.

“(b) The funds in the account shall be available, when appropriated by the Legislature, only for transportation planning and mass transportation purposes, as specified by the Legislature.

“(c) The Legislature may amend this section by statute passed in each house of the Legislature by rollcall vote entered in the journal, two-thirds of the membership concurring, if the statute is consistent with, and furthers the purposes of, this section.” (Ballot Pamphlet, supra, text of proposition, § 2, p. 73 italics indicate language added by Prop. 116.)

Proposition 116 also amended section 7102, in pertinent part, as follows:

“The money in the fund Retail Sales Tax Fund shall, upon order of the Controller, . . . be transferred in the following manner:

“(a)(1) Spillover gas tax revenue, shall be estimated by the State Board of Equalization, with the concurrence of the Department of Finance, and shall be transferred during each fiscal year quarterly to the PTA, a trust fund in the State Transportation Fund for appropriation pursuant to Section 99312 of the Public Utilities Code.

“(2) All revenues, less refunds, due to derived under this part from the imposition of sales and use taxes on fuel, as defined for purposes of the Use Fuel Tax Law (Part 3 (commencing with Section 8601)) at the 4 3/4 percent rate shall be transferred during each fiscal year to the Transportation Planning and Development Account for appropriation pursuant to Section 99312 of the Public Utilities Code.

“(b) All revenues, less refunds, derived under this part at the 4 3/4 percent rate, resulting from increasing, after December 31, 1989, the rate of the tax imposed pursuant to the Motor Vehicle Fuel License Tax Law on motor vehicle fuel, as defined for purposes of that law, shall be transferred during each fiscal year to the Transportation Planning and Development Account for appropriation pursuant to Section 99312 of the Public Utilities Code.

“(c) All revenues, less refunds, derived under this part from a rate of more than 4 3/4 percent pursuant to Sections 6051.1 and 6201.1 shall be transferred to the Disaster Relief Fund created by Section 16419 of the Government Code, shall be estimated by the State Board of Equalization, with the concurrence of the Department of Finance, and shall be transferred quarterly to the PTA, a trust fund in the State Transportation Fund.

“(d)(b) The balance shall be transferred to the General Fund.

“(e)(c) The estimate estimates required by subdivisions subdivision (a) and (b) shall be based on taxable transactions occurring during a calendar year, and the transfers required by subdivision (a) shall be made during the fiscal year that commences during that same calendar year. Transfers required by paragraphs (1) and (2) of subdivisions (a) and (b) shall be made quarterly.

“(d) The Legislature may amend this section, by statute passed in each house of the Legislature by rollcall vote entered in the journal, two-thirds of the membership concurring, if the statute is consistent with, and furthers the purposes of, this section.” (Ballot Pamphlet, supra, text of proposition, § 4, p. 74 italics indicate language added by Prop. 116 while strikeouts indicate language deleted by Prop. 116.)

Proposition 2

In 1998, voters approved Proposition 2, a legislative constitutional amendment, adding article XIX A to the California Constitution. (Cal. Const., art. XIX A (Article XIX A); Ballot Pamphlet, Gen. Elec. (Nov. 3, 1998) official title and summary prepared by the Attorney General, p. 10.) As relevant here, Article XIX A requires loans of state transportation funds from the PTA to the state General Fund to be repaid in full generally within the fiscal year in which the loan is made or within three fiscal years from the date on which the loan was made if the Governor proclaims a fiscal emergency or if the estimated General Fund revenues for the current year are less than the General Fund revenues for the prior year. (Cal. Const., art. XIX A, § 1.)

Proposition 42

In 2002, voters approved Proposition 42, another legislative constitutional amendment, adding article XIX B to the California Constitution. (Cal. Const., art. XIX B (Article XIX B); Ballot Pamphlet, Primary Elec. (March 5, 2002) official title and summary, p. 14.) Article XIX B requires the portion of gas sales and use tax revenue formerly deposited in the state General Fund (nonspillover gas tax revenue) to be transferred instead to a new fund in the State Treasury called the Transportation Investment Fund. (Article XIX B, § 1, subd. (a).) Article XIX B specifies how the gas sales and use tax revenue in the Transportation Investment Fund is to be allocated, directing specific amounts and percentages of revenue to state and local entities for street and highway maintenance, general transportation and public/mass transportation purposes. (Article XIX B, § 1, subd. (b); former Rev. & Tax. Code, § 7104, Stats. 2001, ch. 113, § 9, pp. 11-15.)

Article XIX B allows the transfer of revenue from the General Fund to the Transportation Investment Fund to be suspended in whole or in part in times of severe state fiscal hardship if particular conditions are met. (Article XIX B, § 1, subd. (d); Ballot Pamphlet, Primary Elec. (March 5, 2002) text of Prop. 42, p. 66.) The State partially suspended the transfer in 2003-04 and wholly suspended the transfer in 2004-05. (Ballot Pamphlet, Gen. Elec. (November 7, 2006) analysis by the Legislative Analyst, background, sales tax, p. 15.)

Proposition 1A

In 2006, voters approved Proposition 1A, another legislative constitutional amendment, amending Article XIX B to further limit the conditions under which transfers of the nonspillover gas tax revenue to the Transportation Investment Fund can be suspended. (Article XIX B, § 1, subd. (d); Ballot Pamphlet, Gen. Elec. (November 7, 2006) analysis by the Legislative Analyst, proposal, p. 15.) “Specifically, the measure requires Proposition 42 suspensions to be treated as loans to the General Fund that must be repaid in full, including interest, within three years of suspension. Furthermore, the measure only allows suspension to occur twice in ten consecutive fiscal years. No suspension could occur unless prior suspensions (excluding those made prior to 2007-08) have been repaid in full. In addition, the measure lays out a new schedule to repay the Proposition 42 suspensions that occurred in 2003-04 and 2004-05.” (Ballot Pamphlet, supra, analysis by the Legislative Analyst, proposal, p. 15; Article XIX B, § 1, subd. (f).)

Unchallenged Legislative Amendments to Section 7102

Starting in 2001, the Legislature began to make annual amendments to subdivision (a)(1) of section 7102, the portion of section 7102 governing spillover gas tax revenue. (§ 7102, subd. (a)(1)(A)-(H).) Evidence was submitted to the trial court in the form of a declaration of a program budget manager for the Department of Finance that the amendments for the budget years 2001-02 and 2002-03 did not result in any change to the amount of money deposited in the PTA. However, starting with budget year 2003-04 through 2006-07, the amendments (§ 7102, subd. (a)(1)(C)-(F)) resulted in a reduction in the transfer of gas tax spillover revenue to the PTA. No legal challenge to this legislative practice was filed.

The challenged Amendments, Statutes and Appropriations; the Mass Transportation Fund and the Transportation Debt Service Fund

In 2007, as relevant here, the Legislature undertook a series of actions which added subparts (G) and (H) to subdivision (a)(1) of section 7102 of the Revenue and Taxation Code (Stats. 2007, ch. 173, § 5), added section 7103 to the same code (Stats. 2007, ch. 313, § 9), and added section 16965 to the Government Code (Stats. 2007, ch. 313, § 6). Essentially these amendments appropriated money that was otherwise directed to the PTA to various other government sources and obligations.

Section 7102, subdivision (a)(1)(G) relates to the budget year 2007-08 and provides for the transfer of $622 million of spillover gas tax revenue to a new fund called the Mass Transportation Fund (MTF). (§ 7102, subd. (a)(1)(G).) Subdivision (a)(1)(H) of section 7102 relates to the budget year 2008-09 and every fiscal year thereafter. (§ 7102, subd. (a)(1)(H).) As amended in 2008, subdivision (a)(1)(H) calls for the transfer of $940 million of spillover gas tax revenue to the MTF in 2008-09 and 50 percent of the spillover gas tax revenue estimated each quarter in future years. (§ 7102, subd. (a)(1)(H).)

Revenue and Taxation Code section 7103 (section 7103), subdivision (a), creates the MTF in the State Treasury and provides that the funds transferred to the fund “may be used for, but shall not necessarily be limited to” several specified “transportation purposes.” The four purposes specified by the statute include (1) payment of debt service on transportation bonds or reimbursement to the General Fund for past debt service on transportation bonds; (2) funding of the Department of Developmental Services for regional center transportation; (3) suspended transfer reimbursements; and (4) funding of home-to-school transportation. (§ 7103, subd. (a).)

For budget year 2007-08, appropriations were made from the MTF as follows.

Section 7103, subdivision (b), takes the money ($622 million) transferred to the MTF by section 7102, subdivision (a)(1)(G), and retransfers $539 million to a new “Transportation Debt Service Fund” and appropriates the remainder ($83 million) to current suspended transfer reimbursements. (§ 7103, subd. (b).)

Government Code section 16965 establishes the Transportation Debt Service Fund and authorizes the Director of Finance for the 2007-08 budget year to use the $539 million transferred to the fund as follows: to reimburse the General Fund in the amount of $339 million for the purpose of reimbursing the cost of current debt service payments on three bond propositions–$124 million for current debt service on Proposition 116 bonds, $71 million for current debt service on Proposition 108 bonds (Prop. 108 is known as the Passenger Rail and Clean Air Bond Act of 1990 and is codified at Sts. & Hy. Code, § 2701 et seq.); and $144 million for current debt service on Proposition 192 bonds (Prop. 192 is known as the Seismic Retrofit Bond Fund of 1996 and is codified at Gov. Code, § 8879 et seq.). (Gov. Code, § 16965, subds. (a) & (b)(1).) Government Code section 16965 also authorizes the Director of Finance for the 2007-08 budget year to transfer $200 million from section 7103, subdivision (b), to the General Fund for the purpose of reimbursing the cost of past debt service payments made by the General Fund for public transportation-related general obligation bond expenditures. (Gov. Code, § 16965, subd. (b)(2).) The Department of Finance has determined that this $200 million would be used to reimburse the General Fund for past debt service payments on Proposition 108 bonds.

In summary, the Legislature for the 2007-08 budget year transferred $622 million of spillover gas tax revenue that would have otherwise gone into the PTA into a new fund, the MTF. Ultimately this money was designated to be used for five separate purposes:

(1) $83 million for current debt on suspended transfer reimbursements (§ 7103, subd. (b));

(2) $124 million for current debt on Proposition 116 bonds (Gov. Code, § 16965, subd. (b)(1)(A));

(3) $71 million for current debt on Proposition 108 bonds (Gov. Code, § 16965, subd. (b)(1)(B));

(4) $144 million for current debt on Proposition 192 bonds (Gov. Code, § 16965, subd. (b)(1)(C)); and

(5) $200 million for past debt on Proposition 108 bonds (Gov. Code, § 16965, subd. (b)(2)).

Apart from these five appropriations from the MTF, the Budget Act of 2007 also appropriated $637 million directly from the PTA for several purposes. (1) The Legislature transferred $129 million from the PTA to the Department of Developmental Services (DDS) to pay for the costs of transporting developmentally disabled persons receiving vocational rehabilitation services to regional centers. (Stats. 2007, ch. 171 (S.B. 77), Item No. 4300-101-0001(5), p. 400 (the Budget Act of 2007).) (2) The Legislature transferred $99 million from the PTA to the Department of Education (DOE) to fund the Home-to-School Transportation and Small School District Transportation programs. (Stats. 2007, ch. 172 (S.B. 78), § 56 Item No. 6110-111-0046 (Amendments and Additions to the Budget Act of 2007).) (3) The Legislature authorized the Director of Finance to reimburse the General Fund with $409 million of PTA funds to offset the cost of past debt service payments on public transportation related general obligation bond expenditures (Stats. 2007, ch. 172 (S.B. 78), § 71 (Amendments and Additions to the Budget Act of 2007)) and the State Controller determined the $409 million should be applied to past debt service on Proposition 108 bonds.

Petitioners filed a petition for writ of mandate, declaratory relief, and injunction challenging the Legislature’s 2007 amendment of section 7102, subdivision (a)(1), four of the Legislature’s five appropriations for the budget year 2007-08 from the MTF and all three of the Legislature’s described appropriations for the budget year 2007-08 from the PTA as being inconsistent with Proposition 116 and the California Constitution. Petitioners did not challenge the MTF appropriation of $70,983,363 for payment of current debt on Proposition 108 bonds. (Gov. Code, § 16965, subd. (b)(1)(B).)

The trial court concluded the Legislature validly exercised its authority to amend section 7102 to include subdivisions (a)(1)(G) and (H). The trial court rejected petitioners’ challenges to the four appropriations from the MTF. The trial court concluded the appropriations from the PTA to the DDS and DOE were valid as they served a mass transportation purpose within the meaning of section 99310.5. The trial court concluded, however, the transfer of $409 million to the General Fund for past debt service payments on Proposition 108 bonds was invalid as the transfer did not serve any transportation planning or mass transportation purpose and so was contrary to section 99310.5. Judgment was entered declaring the portion of the Budget Act of 2007 that authorized the $409 million transfer violated section 99310.5 and issuing a writ of mandate commanding the State to transfer $409 million from the General Fund to the PTA. The judgment denied all other claims for relief sought by petitioners.

STANDARD OF REVIEW

Petitioners claim on appeal the trial court erred in its interpretation of section 7102 in light of Proposition 116 and Article XIX A. According to petitioners, the MTF is improper. Petitioners contend the voters intended all spillover gas tax revenue to be placed in the PTA where it would be used only for transportation planning and public transportation purposes. Petitioners claim that payment of home to school and small school district transportation, transit of developmentally disabled persons to regional centers, debt service on Proposition 192 bonds and reimbursement of past debt service are not such purposes. Petitioners also claim payment of current Proposition 116 debt from spillover gas tax revenue violates Proposition 116. Petitioners claim payment of current suspended transfer reimbursements out of the PTA violates Article XIX B (Proposition 1A) and Proposition 116.

The State, in its cross-appeal, contends the trial court erred in concluding the reimbursement of past debt service on Proposition 108 bonds out of the PTA was violative of section 99310.5.

Resolution of these issues requires statutory interpretation, which we consider independently as a question of law. (Professional Engineers v. Wilson (1998) 61 Cal.App.4th 1013, 1020 (PE v. Wilson).)

In resolving the challenges at issue in this appeal, we consider both statutes adopted by the Legislature (§§ 7102, subd. (a)(1)(G) & (H), 7103; Gov. Code, § 16965, the Budget Act of 2007 & the Amendments and Additions to the Budget Act of 2007) and statutes and state constitutional provisions adopted by the voters of California (§§ 7102, 99310.5, 99611, Article XIX A, (Proposition 2), Article XIX B, (Proposition 42 & Proposition 1A).

We keep in mind that “unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. Citations. Two important consequences flow from this fact. First, the entire law-making authority of the state, except the people’s right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution. Citations. In other words, ‘we do not look to the Constitution to determine whether the Legislature is authorized to do an act, but only to see if it is prohibited.’ Citation. Secondly, all intendments favor the exercise of the Legislature’s plenary authority: ‘If there is any doubt as to the Legislature’s power to act in any given case, the doubt should be resolved in favor of the Legislature’s action. Such restrictions and limitations imposed by the Constitution are to be construed strictly, and are not to be extended to include matters not covered by the language used.’ Citations.” (Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691; accord State Personnel Bd. v. Dept. of Personnel Admin. (2005) 37 Cal.4th 512, 523.)

We are particularly cognizant that “the enactment of a budget bill is a legislative function; it is both a right and a duty that is expressly placed upon the Legislature and the Governor by our state Constitution.” (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1214; see Cal. Const., art. IV, § 12.) Nevertheless, even in matters involving the state budget, “the courts have the responsibility for determining the constitutionality of acts of the Legislature, and in doing so to give effect to the will of the electorate which is, of course, paramount. Citation.” (Schabarum, supra, at p. 1218.)

The will of the electorate is involved in our consideration of initiative measures like Proposition 116 as well as Article XIX A and Article XIX B. Statutes and constitutional provisions adopted by the voters “must be construed liberally in favor of the people’s right to exercise the reserved powers of initiative and referendum. The initiative and referendum are not rights ‘granted the people, but . . . powers reserved by them. Declaring it “the duty of the courts to jealously guard this right of the people” citation, the courts have described the initiative and referendum as articulating “one of the most precious rights of our democratic process” citation. “It has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right not be improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.”’ Citations.” (Rossi v. Brown (1995) 9 Cal.4th 688, 694-695.) In fact, “the people’s reserved power of initiative is greater than the power of the legislative body. The latter may not bind future Legislatures citation, but by constitutional and charter mandate, unless an initiative measure expressly provides otherwise, an initiative measure may be amended or repealed only by the electorate. Thus, through exercise of the initiative power the people may bind future legislative bodies other than the people themselves.” (Id. at pp. 715-716.)

DISCUSSION

I.

The Legislature’s Amendment of Section 7102 And Creation Of The MTF (Section 7103)

As the trial court recognized, the threshold issue here is the Legislature’s power to amend section 7102, subdivision (a)(1). Two constitutional provisions affect our analysis.

First, article IV, section 9 of the California Constitution provides, in pertinent part, that “a section of a statute may not be amended unless the section is re-enacted as amended.” “The effect of this section is that voters considering an initiative . . . that seeks to make discrete amendments to selected provisions of an existing statute, are forced to reenact the entire statute as amended in order to accomplish the desired amendments.” (Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 990, original italics deleted.)

Second, article II, section 10, subdivision (c) of the California Constitution provides that “the Legislature . . . may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.” The purpose of this constitutional limitation on the Legislature’s power to amend initiative statutes “is to ‘protect the people’s initiative powers by precluding the Legislature from undoing what the people have done, without the electorate’s consent.’” (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1484.) The power vested in the electorate to decide whether the Legislature can amend an initiative statute “‘is absolute and includes the power to enable legislative amendment subject to conditions attached by the voters. Citation.’ Citations.” (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251 (Amwest); accord, Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1354, 1364.)

Consequently, when section 7102 was amended in 1990 by Proposition 116, it was actually re-enacted in its entirety as amended. (Cal. Const., art. IV, § 9.) At that point, any subsequent amendment to any portion of section 7102 (remembering this is the statute governing the withdrawal and transfer of virtually all of the state’s retail sales and use tax revenue) would require approval of the voters to be effective, except that Proposition 116 expressly included conditional authority for Legislative amendment. (Cal. Const., art. II, § 10.) Proposition 116 provided that “the Legislature may amend this section, by statute passed in each house of the Legislature by rollcall vote entered in the journal, two-thirds of the membership concurring, if the statute is consistent with, and furthers the purposes of this section.” (§ 7102, subd. (e), formerly subd. (d), italics added (hereafter section 7102(e)).) Thus, the meaning of the italicized phrase contained in section 7102(e) is of paramount importance to our decision on this issue.

The validity of the Legislature’s amendment of section 7102, subdivision (a)(1) to add subparts (G) and (H), which transfer a portion of spillover gas tax revenue to the MTF rather than to the PTA, depends on whether such amendment “is consistent with, and furthers the purposes of this section.” Although the initiative’s limitation of the Legislature’s authority to amend section 7102 to provisions “consistent with, and that further the purposes of this section” must be strictly construed, “it also must be given the effect the voters intended it to have.” (Amwest, supra, 11 Cal.4th at pp. 1255-1256.) In line with Amwest, we start “with the presumption that the Legislature acted within its authority” (id. at pp. 1253, 1256) and uphold the validity of section 7102, subdivision (a)(1)(G) and (H) “if, by any reasonable construction” (Amwest, supra, at p. 1256), it can be said those subparts are “consistent with, and further the purposes of this section.” (§ 7102(e).)

In determining what the voters meant by “consistent with, and further the purposes of this section” (§ 7102(e)), “‘we apply the same principles that govern statutory construction. Citation. Thus, “we turn first to the language of the initiative, giving the words their ordinary meaning.” Citation.’” (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037, see DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) “We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the voters did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy. Citations.” (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.) “‘Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure citation and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language.’ Citation.” (Professional Engineers in California Government v. Kempton, supra, at p. 1037.)

The trial court concluded the term “section” in section 7102(e) has a plain meaning. Specifically, it found the accepted legal meaning of “section” refers to section 7102 as a whole, not its subdivisions. Even if ambiguous, the trial court found no extrinsic evidence of intent in the ballot materials for Proposition 116 or anywhere else to suggest “the voters intended to preclude the Legislature from changing the amount of sales and use tax revenues allocated to the PTA.” The trial court concluded the purpose of section 7102 was “to provide for the distribution of all state sales and use tax revenues that have been deposited in the Retail Sales Tax Fund.” It determined that section 7102, subdivision (a)(1)(G) and (H) “is consistent with and furthers the purposes of section 7102 because the amendments distribute sales and use tax revenues for the general operation of the government.” Therefore, it concluded the amendments are valid.

We agree with the trial court that the term “section” has a plain and customary meaning that references section 7102 as a whole. In fact, the Revenue and Taxation Code recognizes this common legal meaning when it references the division of the code into “Division, part, chapter, article, and section.” (Rev. & Tax. Code, § 6.) This common understanding of the term can be inferred from the provision in the Revenue and Taxation Code specifically providing that “‘section’ means a section of this code unless some other statute is specifically mentioned and ‘subdivision’ means a subdivision of the section in which that term occurs unless some other section is expressly mentioned.” (Rev. & Tax Code, § 10.) Where a word or phrase in a statute has an accepted legal meaning, courts will adopt that definition, unless a contrary legislative intent appears. (Texas Commerce Bank v. Garamendi (1992) 11 Cal.App.4th 460, 475.)

We part company with the trial court, however, in its understanding of the phrase “consistent with, and furthers the purposes of this section.” (§ 7102(e).) The trial court’s interpretation of the purpose of section 7102 and the phrase “consistent with, and furthers the purposes of, this section” (§ 7102(e)) as allowing “any amendment distributing sales and use tax revenues for the general operation of the government” essentially amounts to a conclusion that any withdrawal or transfer of sales and use tax revenue from the Retail Sales Tax Fund is valid after Proposition 116 as long as it is a withdrawal or transfer of sales and use tax revenue from the Retail Sales Tax Fund.

We reject the trial court’s conclusion in part because the voters could have accomplished this by simply allowing the Legislature to amend the section, period. The trial court’s interpretation renders meaningless the additional phrase that the amendment must be “consistent with, and further the purposes of this section.” We conclude it is not plainly evident what the voters meant by such phrase. True, the voters did not state that any amendment of section 7102 by the Legislature must further the purposes of Proposition 116. (Cf. Amwest Surety Ins. Co. v. Wilson, supra, 11 Cal.4th at p. 1251; Foundation for Taxpayer and Consumer Rights v. Garamendi, supra, 132 Cal.App.4th at p. 1365; Proposition 103 Enforcement Project v. Quackenbush, supra, 64 Cal.App.4th at p. 1484.) However, the lack of language in section 7102(e) limiting amendments to those that further only the purposes of Proposition 116 is perhaps understandable because, as the trial court put it, “section 7102 is a bucket-type distribution statute that governs the disposition of all state sales and use taxes deposited into the Retail Sales Tax Fund.” If section 7102(e) had limited amendments of the “section” to those that further the purposes of Proposition 116, it would have arguably imposed Proposition 116’s purposes on the Legislature’s ability to deal with all of the sales and use tax revenue in the Retail Sales Tax Fund. Considerable legal uncertainty would have resulted when nothing in Proposition 116 suggests an intent to change the Legislature’s ability to generally deal with the state’s sales and use tax revenue.

It is also true that Proposition 116 did not include language in section 7102(e) similar to Public Utilities Code section 99605, added by Proposition 116. Section 99605 limits amendment of “this part” (the Clean Air and Transportation Improvement Act of 1990) (Pub. Util. Code, § 99600) to statutes consistent with and that further the purposes of “this part.” (Pub. Util. Code, § 99605.) Section 99605 then states: “No changes shall be made in the way in which funds are allocated pursuant to Chapter 3 (commencing with Section 99620), except pursuant to Section 99684.” Certainly if section 7102(e) contained a similar express limitation for spillover gas tax revenues transferred to the PTA under section 7102, subdivision (a)(1), there would be no issue of interpretation here. The failure of Proposition 116 to include a specific restriction of amendments to section 7102, subdivision (a)(1) in section 7102(e) when it included a specific limitation in section 99605 may be evidence that the voters did not intend such a restriction. (See People v. Goodloe (1995) 37 Cal.App.4th 485, 491; Engs Motor Truck Co. v. State Bd. of Equalization (1987) 189 Cal.App.3d 1458, 1470.) On the other hand, examination of the legislation’s purpose and application of other canons of statutory construction may suggest the omission is an oversight. (People v. Goodloe, supra, at p. 491; Engs Motor Truck Co. v. State Bd. of Equalization, supra, at p. 1470.)

In interpreting a statute we are required, if possible, to give significance and effect to each word and phrase and to avoid a construction that makes any part of the statute superfluous or meaningless. (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063; California Manufacturers Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844; San Diego Police Officers Assn. v. City of San Diego Civil Service Com. (2002) 104 Cal.App.4th 275, 284; 2A Singer & Singer, Statutes and Statutory Construction (7th ed. 2007) Statutory Interpretation, § 46:6, pp. 230-247.)

Unlike the trial court, we conclude that the voters in including the phrase “consistent with, and furthers the purposes of this section” in section 7102(e) meant something more than the Legislature may amend the section. The phrase is language of limitation. To determine the nature of the limitation we turn to the terms of Proposition 116 so that we may consider section 7102(e) in the context of the entire initiative of which it is part. (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 388.)

Proposition 116 authorized the issuance of almost $2 billion of general obligation bonds to fund primarily passenger and commuter rail infrastructure. (Pub. Util. Code, §§ 99600, 99601; Ballot Pamp., Primary Elec. (June 5, 1990) official title and summary, p. 36.) The voters expressed their intent that the “bond funds shall not be used to displace existing sources of funds for rail and other forms of public transportation, including, but not limited to, funds that have been provided pursuant to . . . , the PTA, . . . ; and that funding for public transit should be increased from existing sources including fuel taxes and sales tax on fuels.” (§ 99611.)

By amendment to section 99310.5, the voters designated the PTA a trust fund and changed the purposes for which the PTA funds could be used from transportation purposes to “transportation planning and mass transportation purposes.” (§ 99310.5, subd. (b).) Proposition 116 also amended section 7102 to provide for more frequent transfers of spillover gas tax revenue to the PTA, which again was referred to as a trust fund. (§ 7102, subd. (a)(1).) Section 7102, subdivision (a)(1) provided the estimated spillover gas tax revenue “shall be transferred” to the PTA. As amended by Proposition 116, the language of section 7102, subdivision (a)(1) stopped there. (Ballot Pamphlet, supra, text of proposition, § 4, p. 74.) It did not include the language “except as modified as follows.” That qualifier was added in 2006 by the Legislature. (Stats. 2006, ch. 56, (S.B. 1132) § 4.)

When the provisions of the initiative are read in context and harmonized together, we conclude the voters in adopting Proposition 116 intended to add a new source of money (the proposition’s bond funds) for public transportation projects, to convert the PTA to a trust fund dedicated to supporting transportation planning and mass transportation projects, and to preserve the funding of the PTA for such projects with spillover gas tax revenue according to the formula specified in section 7102, subdivision (a)(1). A constant amount of spillover gas tax revenue is not guaranteed, but if the formula results in there being spillover gas tax revenue it must be transferred to the PTA for use in accordance with section 99310.5. The voters’ intent to preserve spillover gas tax funding of the PTA would be frustrated if the Legislature could amend section 7102, subdivision (a)(1) to modify the amount of spillover gas tax revenue making it to the PTA.

We conclude, therefore, the language of section 7102(e) that allows Legislative amendment of “this section” if the amendment is “consistent with, and furthers the purposes of this section” must be read to authorize the Legislature to amend any part of the section 7102 statute as long as the amendment is consistent with and furthers the purposes of that particular part of the statute. In the case of amendments to subdivision (a)(1) of section 7102, legislative amendments must be consistent with the purposes of the PTA as described by section 99310.5, subdivision (b). That is, amendments to subdivision (a)(1) of section 7102 may appropriate these trust funds only for transportation planning or mass transportation purposes. Since subdivision (a)(1)(G) and (H) of section 7102 transfer spillover gas tax revenue to the MTF, a fund with purposes not limited to those identified by section 99310.5, there is no “reasonable construction” (Amwest, supra, 11 Cal.4th at p. 1256) by which subdivision (a)(1)(G) and (H) can be said to be consistent with, and further the purpose of the portion of section 7102 that they amend. They are invalid.

We find further support for our interpretation of section 7102(e) in the Legislature’s action in submitting Proposition 2 to the voters in the November 1998 General Election. (Cal. Const., art. XIX A (Article XIX A); Ballot Pamphlet, Gen. Elec. (Nov. 3, 1998) official title and summary prepared by the Attorney General, p. 10.) As relevant here, Article XIX A restricts the conditions under which funds from the PTA may be loaned to the state General Fund. (Cal. Const., art. XIX A, § 1.) If the Legislature could reduce transfers of revenue to or divert revenue from the PTA to the benefit of the General Fund by means of an amendment to section 7102, subdivision (a)(1), a loan procedure would be unnecessary. The fact that the Legislature believed revenue in the PTA could be tapped only through loans, as evidenced by its submission of Proposition 2 to the electorate, reflects its understanding of the effect of Proposition 116 consistent with our opinion. This understanding also comports with our conclusion as to the nature and scope of the intent of Proposition 116 and section 7102(e).

Our conclusion does not mean the Legislature’s creation of the MTF (§ 7103) is improper or invalid. The Legislature has plenary lawmaking authority over the state’s budget (Cal. Const., art. IV, § 12) and we are aware of no constitutional prohibition precluding it from creating specific funds in the state treasury for any number of governmental purposes. (See Methodist Hosp. of Sacramento v. Saylor, supra, 5 Cal.3d at p. 691; Schabarum v. California Legislature, supra, 60 Cal.App.4th at pp. 1213-1215.) We only conclude that subdivision (a)(1)(G) transferring millions of spillover gas tax revenue to the MTF in budget year 2007-08 and subdivision (a)(1)(H) regarding the continuous transfer of millions of spillover gas tax revenue in 2008-09 and each fiscal year thereafter are invalid. The source of the revenue in the MTF may not be spillover gas tax revenue that would otherwise have been transferred to the PTA pursuant to section 7102, subdivision (a)(1). The voters, through Proposition 116, have precluded such amendment of section 7102, subdivision (a)(1).

II.

Use Of PTA Revenue For Transportation Planning and Mass Transportation Purposes

Although we have concluded the Legislature’s amendment of section 7102, subdivision (a)(1) to add subparts (G) and (H) transferring PTA money to the MTF was invalid, the funds transferred to the MTF in the 2007-08 budget year may nevertheless have been validly appropriated if they were actually used for “transportation planning and mass transportation purposes” as required for PTA funds. (§ 99310.5.) In fact, petitioners concede the appropriation of $71 million to pay current debt service on Proposition 108 (the Passenger Rail and Clean Air Bond Act of 1990–Sts. & Hy. Code, § 2701 et seq.) bonds was a transportation planning and mass transportation purpose. Petitioners argue, however, that of the 2007-08 budget year appropriations from the MTF, two of the other four appropriations (the $144 million for current debt on Proposition 192 bonds (Gov. Code, § 16965, subd. (b)(1)(C)) and the $200 million, for past debt on Proposition 108 bonds (Gov. Code, § 16965, subd. (b)(2)), were not for mass transportation purposes.

As to appropriations from the PTA itself for budget year 2007-08, petitioners contend all three were not for mass transportation purposes. The trial court disagreed with petitioners and found that all appropriations from the MTF were valid. As to appropriations from the PTA, the trial court agreed with petitioners that the $409 million transferred to the General Fund to reimburse the General Fund for past debt service on Proposition 108 bonds was invalid. It rejected petitioners claims regarding the transfers of $129 million from the PTA to the DDS to pay for the costs of transporting developmentally disabled persons receiving vocational rehabilitation services to regional centers and the transfer of $99 million from the PTA to the DOE to fund the Home-to-School Transportation and Small School District Transportation programs.

Petitioners argue on appeal the trial court erred in its conclusion as to these last two appropriations from the PTA to the DDS and the DOE, and the State contends in its cross-appeal that the trial court erred as to its first conclusion.

Finally, we also consider here petitioners’ challenge to the Legislature’s transfer of $83 million from the MTF to the General Fund for suspended transfer reimbursements as violative of Proposition 116 and Article XIX B. The validity of such transfer is also resolved by consideration of whether it was a transfer for transportation planning or mass transportation purposes.

To determine these issues, we first consider the meaning of “mass transportation” as used in section 99310.5. Next we consider whether appropriations for payment of Proposition 192 debt, for costs of transporting the developmentally disabled to regional centers, and for transporting some school children are such mass transportation purposes. Then we address the question of whether reimbursement of the General Fund for its past debt service on an undisputed mass transportation bond fund is a mass transportation purpose within the meaning of section 99310.5. Finally, we consider the transfer of money from the MTF for suspended transfer reimbursements.

A. The Meaning of “Mass Transportation” As Used In Section 99310.5

Proposition 116 amended section 99310.5 to designate the PTA a trust fund and to change the purposes for which the PTA funds could be used from transportation purposes to “transportation planning and mass transportation purposes.” (§ 99310.5, subd. (b).) The term “mass transportation” is not defined. The trial court agreed with petitioners that the term should be equated with “public” transit or transportation. The State urges us to adopt instead a dictionary meaning of mass transportation as “a means or system of conveying a large number of people.” We conclude the trial court got it right.

In interpreting the meaning of “mass transportation” as used in section 99310.5, our paramount task is to ascertain the intent of the voters who enacted section 99310.5 so that our construction best effectuates the purpose of the law. (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567; Professional Engineers in Cal. Government v. Kempton, supra, 40 Cal.4th at p. 1037.) We start with the statute’s words, “giving them their ordinary and usual meaning and viewing them in their statutory context, because the statutory language is usually the most reliable indicator of legislative intent.” (Gattuso v. Harte-Hanks Shoppers, Inc., supra, at p. 567.) The plain meaning of the words controls unless the words are ambiguous. (Green v. State of California (2007) 42 Cal.4th 254, 260.) “If the statutory language is ambiguous and susceptible of differing constructions, we may reasonably infer that the legislators intended an interpretation producing practical and workable results rather than one resulting in mischief or absurdity. (See In re Reeves (2005) 35 Cal.4th 765, 771, fn. 9, and cases cited.) It is a fundamental tenet of statutory construction that we must give the statute a reasonable construction conforming to legislative intent. (Gattuso, supra, 42 Cal.4th at p. 567.)” (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 919.)

The State argues the plain and usual meaning of “mass transportation” may be determined by reference to the dictionary definitions of “mass” and “transportation.” Since the dictionary “defines the word ‘mass’ as meaning ‘of a large number of things; large-scale,’ ‘of a large number of persons,’ and ‘of, characteristic of, or for the masses’ (Webster’s New World Dictionary (Third College Ed.) at p. 832)” and transportation “as ‘a means or system of conveyance’ or ‘the work or business of conveying passengers or goods’ (id. at p. 1422)” the State contends “the dictionary definition of ‘mass transportation’ is a means or system of conveying a large number of people.”

The first problem with this approach is that the words “mass” and “transportation” have multiple dictionary meanings that may be combined to reach not only the State’s proposed definition, but a definition of public transportation as well. (See, e.g., Webster’s Third New International Dictionary (1986) at pp. 1388 serving, 2430 “transport” defined as “a system or organized means of public conveyance or travel”, italics added.)

The more fundamental problem with the State’s proffered meaning is its failure to provide a reasonable and workable distinction from “transportation purposes” generally. Proposition 116 deleted “transportation purposes” from section 99310.5 and substituted “transportation planning and mass transportation purposes.” Clearly, a limiting change was intended by the use of the term “mass transportation.” Yet the State’s suggestion that PTA funds may be used for any transportation purpose “that serves multiple people” can cover virtually any State transportation project, including any street, highway or bridge. The qualifier that the project serve “multiple people” is meaningless as there is no clear, nonarbitrary means of determining exactly how many people are necessary to qualify as “multiple” people and we assume all of the State’s transportation projects benefit and serve more than one individual. The State’s construction of the term “mass transportation” renders the amendment of section 99310.5 superfluous.

Moreover, the State’s interpretation does not effectuate the stated intent of the electorate in adopting Proposition 116. Proposition 116 was adopted to provide new bond revenue to fund primarily passenger and commuter rail infrastructure. These are clearly means of “public” transportation. The voters expressed their intent that the “bond funds shall not be used to displace existing sources of funds for rail and other forms of public transportation, . . . ; and that funding for public transit should be increased from existing sources including fuel taxes and sales tax on fuels.” (§ 99611, italics added.) Given this context, it appears the voters intended the term “mass transportation” in section 99310.5 to be synonymous with “public transportation” or “public transit.” Such interpretation accords a reasonable construction to the term “mass transportation” in light of the voter’s intent.

Our interpretation is consistent with how the California Department of Transportation apparently views the term “mass transportation.” We note the Department of Transportation structurally includes a “Division of Mass Transportation” that provides technical assistance to agencies responsible for public transportation. (See as of June 30.) In its Web site description of the responsibilities and objectives of the Division of Mass Transportation, the Department of Transportation uses the term “mass transportation” as the equivalent of public transportation. (Ibid.) The Department of Transportation’s definition on its website of the term “mass transportation” is “transportation by bus, rail, or other conveyance, either publicly or privately owned, which provides to the public general or special service on a regular and continuing basis. (Does not include school buses, charter, or sightseeing service). See also ‘Public Transportation.’” ( as of June 30.)

Our interpretation of mass transportation as public transportation is also consistent with how the terms are defined by the federal Urban Mass Transportation Act of 1964 (49 U.S.C. § 5301 et seq.), which “was enacted in order to provide financial assistance to state and local governments for the development and operation of mass transportation systems.” (Stockton Metropolitan Transit Dist. v. Amalgamated Transit Union (1982) 132 Cal.App.3d 203, 207.) Section 5302 defines the term “mass transportation” for purposes of such law to “mean public transportation.” (49 U.S.C.S. § 5302, subd. (a)(7).)

The trial court correctly determined the voters intended “mass transportation” in section 99310.5 to be the same as “public transit” or “public transportation.”

B. The Legislature’s Appropriations For Current Debt Service on Proposition 192 Bonds, For Transportation Of The Developmentally Disabled, and For Transportation Of School Children

Having concluded the term “mass transportation” in section 99310.5 should be interpreted to mean public transit or public transportation, we now apply our statutory construction of section 99310.5 to three of the Legislature’s 2007-08 appropriations.

Current Debt Service for Proposition 192

To begin with, we consider the Legislature’s appropriation of $144 million from the MTF for the payment of current debt service on Proposition 192 bonds. Proposition 192 is known as the Seismic Retrofit Bond Fund of 1996. (Gov. Code, § 8879, subd. (a).) Government Code section 8879.3 provides that the proceeds of the Proposition 192 bonds are to be used “for the seismic retrofit of state-owned highways and bridges, including toll bridges, throughout the state.” (Gov. Code, § 8879.3, subd. (a).) Bond funds “may be used to match any available federal funds for transportation purposes or may be used without matching federal funds to reconstruct, replace, or retrofit state-owned highways and bridges, including toll bridges.” (Ibid.) It is clear from these statements that payment of current debt service on Proposition 192 bonds is not funding a “mass transportation” purpose within the meaning of section 99301.5, but a general transportation purpose. The State argues it may nevertheless be a “transportation planning” purpose because substantial planning is required for the seismic retrofitting of highways and bridges. We do not doubt a great deal of planning is necessary for projects funded by Proposition 192, but it is not planning “transportation.” It is planning for reconstruction, replacement, and retrofitting of highways and bridges. The 2007-08 appropriation of revenue in the MTF for the purpose of debt service on Proposition 192 bonds (Gov. Code, § 16965, subd. (b)(1)(C)) violates the purposes of section 99310.5 and is invalid.

Appropriations to the DOE and to DDS

We next consider the Legislature’s appropriation from the PTA of $99 million to the DOE for the Home to School and Small School District Transportation programs (Educ. Code, §§ 41850 et seq., 42290 et seq.) and $129 million to the DDS for transportation of the developmentally disabled to regional centers. It was the trial court’s view that “mass transportation services may include not only general transportation services provided to the public at large, but also specialized transportation services indiscriminately provided to some portion of the public.” The trial court concluded transporting public school children and the disabled was a specialized service of mass transportation within the meaning of section 99310.5. We disagree.

While public transportation may include both general and specialized services, the critical point is that the transportation is provided indiscriminately to the public. (See Pub. Util. Code, § 99211; see also 49 U.S.C.S. § 5302, subd. (a)(10).) Thus, special services may be necessary to enable the disabled or the elderly to have comparable access to public transportation through, for example, paratransit or demand responsive services. (See, e.g., 49 C.F.R. § 37.121.) But provision of transportation for public school children is not providing school children with access to public transportation. It is providing transportation service to a discrete portion of the public that is not available to the general public. (See Rochester-Genesee Regional Transit Authority v. Hynes-Cherin (W.D.N.Y. 2008) 531 F.Supp.2d 494, 499 school bus routes must be open to the public to receive federal public transit funding.) The same is true with the program for transporting developmentally disabled persons to regional centers. This is not a special service to enable the developmentally disabled access to public transportation. This is a transportation service to a discrete population (developmentally disabled persons who have transportation services as part of their individual program plans) (Welf. & Inst. Code, § 4648; 17 Cal. Code Regs. § 58510, subd. (a)(1)) that is not available to the general public. Transportation services for school children and for the developmentally disabled are worthy causes, which the Legislature may well consider important to financially support. We conclude only that they are not “mass transportation” purposes within the meaning of section 99310.5. They may not be funded with revenue from the PTA. The 2007-08 appropriations from the PTA for such purposes are invalid.

C. Payment Of Past Debt Service, As A Mass Transportation Purpose

The Legislature authorized two transfers in the 2007-08 budget year for the purpose of reimbursing the cost of past debt service payments made by the General fund on Proposition 108 bonds (the Passenger Rail and Clean Air Bond Act of 1990; Sts. & Hy. Code, § 2701 et seq.). First, Government Code section 16965, subdivision (b)(2), authorized the transfer of $200 million to the General Fund for past debt service on Proposition 108 bonds from the Transportation Debt Service Fund. This was an indirect use of PTA revenue since the MTF funded the Transportation Debt Service Fund (§ 7103, subd. (b)) and we have already determined the MTF was wrongfully funded with spillover gas tax revenue that should have been transferred to the PTA. Second, the Legislature authorized the transfer of $409 million directly from the PTA to reimburse the General Fund for such past debt service payments on Proposition 108 bonds. (Stats. 2007, ch. 172 (S.B. 78), § 71 (Amendments and Additions to the Budget Act of 2007).)

Petitioners challenged these transfers claiming they were improper because (1) they were in effect a second payment of the Proposition 108 debt service obligation that had already been paid at least indirectly by diversion of PTA funds in the prior years and (2)the debt service obligation was discharged by payment in the prior years so that the transfer of PTA revenue to offset those payments was not the expenditure of money for “transportation planning and mass transportation” purposes.

The trial court agreed with petitioners that the $409 million transfer to offset past debt did not serve any transportation planning or mass transportation purpose. The trial court rejected petitioners claim regarding the $200 million transfer, however, when it rejected all of petitioners’ challenges to the revenue transferred to the MTF. The trial court found the Legislature’s amendments to section 7102, subdivision (a)(1) were valid, so the $622 million transferred to the MTF was not PTA spillover gas tax revenue subject to section 99310.5. Petitioners appeal the trial court’s conclusion with respect to the $200 million transfer and the State cross-appeals the trial court’s conclusion with respect to the $409 million transfer.

We have previously concluded that section 7102, subdivision (a)(1)(G) and (H), were invalid Legislative amendments in light of the voters’ intent in Proposition 116. Thus, the two transfers of PTA spillover gas tax revenue for reimbursement of the General Fund for prior debt service payments present the same dispositive issue: does the transfer of spillover gas tax revenue to the General Fund for the purpose of reimbursing the General Fund’s past payment of its obligations on bond issues that were for a mass transportation purpose a transfer that is for a mass transportation purpose? We conclude the answer is no.

There is a clear distinction between transferring revenue from the PTA to the General Fund to pay current debt obligations on mass transportation bonds and transferring such revenue to reimburse for past debt obligations. In the case of the former, the revenue flows from the source to the present obligation via the General Fund to serve a mass transportation purpose. Although the money passes through the General Fund, it is still actually being used for the identified mass transportation purpose. In the Legislature’s discretion, this may include the payment of current bond debt on mass transportation bonds. In the case of offsets or reimbursement of past debt service payments, however, there is no mass transportation debt obligation to be paid with the PTA funds. The debt was paid by the General Fund in the prior fiscal years. No actual debt remains. Money from the PTA under the label of offsetting or reimbursing past debt payments is simply transferred to the General Fund where it can be used for any governmental purpose. Such reimbursement of the General Fund for its previous payment of its obligation on the specified bonds does not serve a “mass transportation” purpose. There is no flow through similar to the payment of current debt. “Funding restrictions cannot be ignored through the guise of a theoretical legal ‘obligation.’” (PE v. Wilson, supra, 61 Cal.App.4th 1013, 1021.)

The State offers a cursory argument that the reimbursement of past debt service payments does serve a mass transportation function. The State suggests there is a mass transportation purpose in the reimbursements because they provide needed flexibility for the Legislature to deal with mass transportation projects supported with spillover gas tax revenues that vary from year to year. The State reasons that “if the Legislature did not have the flexibility to reimburse the General Fund for prior debt service payments, it would be forced to use spillover revenues to make current debt service payments even when there was a minimal amount of spillover revenues available to be transferred into the PTA. By allowing the Legislature to reimburse the General Fund for past debt service payments, it would be able to make such payments when spillover revenues are high such that transportation projects ordinarily serviced by the PTA would not be impacted.”

We reject this argument for two reasons. First, the petitioners note that the State’s argument does not square with legislative practice: general fund revenues were used to pay debt service in years when there was ample PTA revenue. Second, the argument is besides the point. Constitutional restrictions cannot be ignored based on bugetary convenience.

D. Payment Of Suspended Transfer Reimbursements As A Mass

Transportation Purpose

The Legislature authorized the transfer of $83 million from the MTF to the General Fund in the 2007-08 budget year for the purpose of making suspended transfer reimbursements required by Article XIX B, subdivision (f). (§ 7103, subd. (b).) The trial court determined no law prohibited the reimbursement of the General Fund for its ultimate obligation to repay the suspended transfers and rejected petitioners’ challenge to the appropriation, citing PE v. Wilson, supra, 61 Cal.App.4th at pages 1020-1021. Petitioners contend the trial court erred in finding PE v. Wilson applicable and in concluding the transfer did not violate Proposition 116 and Article XIX B, subdivision (f). The State claims PE v. Wilson controls the outcome of petitioners’ challenge and requires us to uphold this transfer.

In PE v. Wilson, supra, 61 Cal.App.4th 1013, this court concluded the Legislature could use funds from the State Highway Account (SHA) to reimburse the General Fund for payments of principal and interest on Proposition 108 and Proposition 116 bonds, except to the extent the SHA funds were traceable to “gas tax” funds that were transferred in violation of article XIX, section 4 of the California Constitution. (PE v. Wilson, supra, at p. 1017.) We drew a distinction between “reimbursement” and “obligation” and held that the use of SHA funds to reimburse the General Fund was not prohibited by Proposition 108 and Proposition 116, which placed the ultimate obligation for payment of the bonds on the General Fund. (PE v. Wilson, supra, at pp. 1020-1021.) We rejected appellants’ argument that the reimbursement violated the intent of the voters to increase mass transit spending without depleting existing transportation funds such as the SHA. (Id. at pp. 1022-1023.) Instead, from the statement of intent set forth in section 99611, we found “the voters intended to increase mass transit spending without depleting or displacing any existing public transportation (mass transit) funds. Indeed, section 99611 provides that public transit funding should be increased from existing transportation funds like fuel taxes and sales taxes on fuels.” (PE v. Wilson, supra, at p. 1022.) We found there was “no evidence that SHA funds or other transportation funds already earmarked for mass transit have been directed to the General Fund for this bond debt reimbursement.” (Id. at p. 1023.)

From PE v. Wilson, supra, 61 Cal.App.4th 1013, we draw several useful principles applicable here. First, reimbursement of the General Fund for its payment of debt is not precluded simply because the debt obligation is imposed in the first place on the General Fund. (Id. at pp. 1020-1021.) However, careful analysis must be made of both the purpose of the reimbursement and the revenue source for the reimbursement in order to evaluate the validity of the reimbursement. The reimbursement was valid in PE v. Wilson even though the money was being used to reimburse, in part, payment of Proposition 116 bond debt because the revenue source, the SHA, was a general transportation account with no evidence the money came from funds already earmarked in the SHA for mass transportation purposes. (Id. at pp. 1022-1023.)

In contrast here, the revenue source for the reimbursement of the General Fund for its obligation to repay suspended transfers of non-spillover gas tax revenue is spillover gas tax revenue that should have been deposited in the PTA. Such revenue is burdened with the restriction of section 99310.5 that it be used for transportation planning and mass transportation purposes. The purpose of the reimbursement is to pay back the General Fund for its payment of suspended transfer reimbursements required under Article XIX B, subdivision (f). Like the reimbursement of the General Fund for other payments of current debt, this reimbursement essentially flows through the General Fund to the Transportation Investment Fund to replace non-spillover gas tax revenues that should have been transferred to that fund in 2003-04 and 2004-05. Thus, spillover gas tax revenue earmarked for transportation planning and mass transportation purposes is being transferred to the Transportation Investment Fund for use in accordance with the directives found in Article XIX B. Article XIX B allocates specific amounts and percentages of the revenue in the Transportation Investment Fund to state and local entities for street and highway maintenance, general transportation and public/mass transportation purposes. (Article XIX B, § 1, subd. (b); former Rev. & Tax. Code, § 7104, Stats. 2001, ch. 113, § 9, pp. 11-15.) Thus, its purposes are not limited to transportation planning and mass transportation. Therefore, the use of PTA spillover gas tax revenues to fund the Transportation Investment Fund (through suspended transfer reimbursements) violates Proposition 116. (§ 99310.5.) This conclusion is consistent with the reasoning of PE v. Wilson, supra, 61 Cal.App.4th 1013.

Given our conclusion that the transfer from the MTF of PTA spillover gas tax revenue to the General Fund for suspended transfer reimbursements violates Proposition 116, we need not consider petitioners’ claim that it also violates the voters’ intent in passing Proposition 1A, which amended Article XIX B.

III.

Payment Of Current Proposition 116 Debt With PTA Revenue

As we have stated before, in adopting Proposition 116 the voters expressed their intent that the “bond funds shall not be used to displace existing sources of funds for rail and other forms of public transportation, including, but not limited to, funds that have been provided pursuant to . . . , the PTA, . . . ; and that funding for public transit should be increased from existing sources including fuel taxes and sales tax on fuels.” (§ 99611.) Petitioners claim the payment in the 2007-08 budget year of $124 million current Proposition 116 debt with funds that should have been deposited in the PTA account is a displacement or decrease of existing sources of funds and so violates Proposition 116. We agree.

The trial court’s conclusion to the contrary was predicated on its earlier decision that the Legislature’s amendment of section 7102, subdivision (a)(1), was valid and that the funds in the MTF were not PTA spillover gas tax revenue to which section 99611 was applicable. We have rejected that predicate. The 2007-08 budget appropriation from the MTF of PTA spillover gas tax revenue to pay current Proposition 116 debt in effect displaced or decreased an existing source of funds for public transportation, the PTA. The appropriation violates section 99611.

The State, however, contends this construction of section 99611 renders the section unconstitutional. Citing People’s Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 328 (People’s Advocate), the State argues our interpretation of section 99611 “runs afoul of the principle that no statute, including an initiative statute, may bind the hands of future Legislatures by adopting rules not capable of change.” Again relying on People’s Advocate (id. at p. 329), the State argues our interpretation of section 99611 restrains the ability of the Legislature to budget funds in a particular year in the manner it sees fit, dictates the content of future budget bills, and circumvents the budget process called for by the California Constitution. We disagree.

In People’s Advocate, supra, 181 Cal.App.3d at pages 328-329, this court invalidated, inter alia, a portion of the Legislative Reform Act of 1983, a statutory initiative, which limited the amount of monies that the Legislature could appropriate for its own support. We found the limitation, which was based on a formula tied to the budget bill enacted for the budget year 1982-83, violated the established principles that legislative enactments may not be used to divest the Legislature of the power to enact legislation within its competence and that the Legislature may not bind its own hands or those of future Legislatures by rules that are not capable of change. (Id. at p. 328.) The people’s initiative power was circumscribed by the same principles. (Ibid.) We also concluded the limitation violated article IV, section 12 of the California Constitution because it “invaded not only the content of the Governor’s budget bill but displaced the process (budget and budget bill) by which the constitution commands the adoption and enforcement of the budget.” (Id. at p. 329.)

However, we noted significantly that the limitation at issue “must be distinguished from the constitutional authorization to appropriate money by statute by measures other than the budget bill. That power is specifically recognized in article IV, section 12. It authorizes the Legislature and hence the people to provide by statute for a continuing appropriation to pay for some specified program. (See, e.g., Railroad Commission v. Riley (1923) 192 Cal.54 218 P.415.) However, the power so recognized does not authorize the placement of a legal limit upon the power of the Legislature to enact future appropriations legislation. Although as a practical fiscal matter, a statute containing a continuous appropriation may limit the Legislature’s financial choices in other appropriations measures, such a limitation is not one imposed by law.” (People’s Advocate, supra, 181 Cal.App.3d at p. 329, fn. 13.)

The voters in adopting Proposition 116 directed, through the statement of intent contained in section 99611, that the proposition’s bond funds should be an additional funding source for primarily rail transportation on top of other existing sources of funding for public transportation. The voters specified that all of the bond funds authorized by Proposition 116 are continuously appropriated for allocation for grants to support the proposition’s purposes. (Pub. Util. Code, §§ 99612, 99613.) As a continuous appropriation, the limitation imposed by section 99611 on the use of Proposition 116 bond funds is distinguishable from the limitation we invalidated in People’s Advocate. (People’s Advocate, supra, 181 Cal.App.3d at p. 329, fn. 13.) The limitation does not run afoul of article IV, section 12, of the California constitution.

Moreover, since the limitation contained in section 99611 may be amended by legislative statutory initiative or by referendum, it is capable of change and the people and Legislature are not divested of authority to enact future legislation. (See Watson v. Fair Political Practices Com. (1990) 217 Cal.App.3d 1059, 1071-1072.)

IV.

Conclusion Summary

We conclude the Legislature’s amendment of section 7102, subdivision (a)(1) to add subparts (G) and (H) is not consistent with and does not further the purpose of section 7102, subdivision (a)(1) and therefore, is invalid. The funds transferred pursuant to those subparts are still PTA spillover gas tax revenue restricted in use to the purposes of transportation planning and mass transportation pursuant to section 99310.5. We conclude the voters intended the term “mass transportation” used in section 99310.5 to mean public transportation or public transit.

Applying these conclusions to the Legislature’s appropriations of PTA spillover gas tax revenue for the 2007-08 budget year, we conclude (1) the Legislature’s appropriation of $144,332,489 for the payment of current debt service on Proposition 192 bonds is invalid as it does not serve a transportation planning or mass transportation purpose; (2) the Legislature’s appropriation of $99,120,000 to the Department of Education for the Home to School and Small School District Transportation programs is invalid for the same reason; (3) the Legislature’s appropriation of $128,806,000 to the Department of Developmental Services for transportation of the developmentally disabled to regional centers is invalid for the same reason; (4) the Legislature’s appropriation of $200,000,000 for reimbursement of past debt service of Proposition 108 bonds is invalid for the same reason; (5) the Legislature’s appropriation of $409,000,000 for reimbursement of past debt service of Proposition 108 bonds is invalid for the same reason; (6) the Legislature’s appropriation of $82,678,000 for the purpose of making suspended transfer reimbursements required by Article XIX B, subdivision (f), is invalid for the same reason; and (7) the Legislature’s appropriation of $123,973,493 for payment of current debt service on Proposition 116 bonds is invalid as it violates section 99611.

DISPOSITION

The portion of the judgment granting a declaratory judgment and writ of mandate regarding the budget year 2007-08 transfer of $409 million is affirmed. The portion of the judgment denying all other relief is reversed. The trial court is directed to enter a new judgment granting declaratory relief and a writ of mandate consistent with this opinion. Costs on appeal are awarded to Josh Shaw and the California Transit Association. (Cal. Rules of Court, rule 8.278(a).)

CANTIL-SAKAUYE , J.

We concur:

NICHOLSON , Acting P. J.

RAYE , J.

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)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, William M. Monroe, Judge. Requests for judicial notice. Judgment affirmed. Requests granted.

Rutan & Tucker, Philip D. Kohn and William H. Ihrke for Plaintiff and Appellant.

Stephen P. Wiley, City Attorney (Santa Barbara), and N. Scott Vincent, Assistant City Attorney, for the City of Santa Barbara, the City of Arroyo Grande, the City of Bradbury, the City of Carlsbad, the City of Colton, the City of Cypress, the City of Diamond Bar, the City of Laguna Beach, the City of Lodi, the City of Nevada City, the City of Pasadena, the City of Pismo Beach, the City of Pittsburg, the City of Pleasanton, the City of Reedley, the City of San Luis Obispo, the City of Signal Hill, the City of Vista, the City of Westlake Village, the City of Yorba Linda, the Town of Apple Valley and the Town of Paradise, as Amici Curiae on behalf of Plaintiff and Appellant.

Fulbright & Jaworski, Colin Lennard; Joanna Africa; Miles • Chen Law Group and Patricia J. Chen for Defendant and Respondent.

Kenneth K. Moy for Association of Bay Area Governments as Amicus Curiae on behalf of Defendant and Respondent.

* * *

This is an appeal from a judgment dismissing a petition for a writ of mandate entered after the trial court sustained a demurrer to the petition without leave to amend. The issue presented is whether the administrative procedure established under Government Code section 65584 et seq. (all further statutory references are to the Government Code unless otherwise stated) to calculate a local government’s allocation of the regional housing needs assessment (RHNA) is intended to be the exclusive remedy for the municipality to challenge that determination and thereby preclude judicial review of the decision. We conclude the answer to this question is yes and affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Since this case involves a dismissal entered after the trial court sustained a demurrer to the petition without leave to amend, we “assume the truth of all properly pleaded material facts unless contradicted by judicially noticed matters” and “determine whether, reading the petition as a whole and giving it a reasonable interpretation, the pleading states facts sufficient to state a cause of action or a reasonable possibility exists that any defects can be cured by amendment. Citations.” (Burt v. County of Orange (2004) 120 Cal.App.4th 273, 279.)

Plaintiff City of Irvine is a “municipal corporation” in Orange County, “organized and existing under . . . the laws of the State of California.” Under section 65300, it “must adopt a comprehensive General Plan governing land use and development within its jurisdictional boundary” of which “a Housing Element is a required component . . . .” In turn, the housing element “must consist of an identification and analysis of existing and projected housing needs and a statement of goals, policies, quantified objectives, financial resources and scheduled programs for the preservation, improvement and development of housing” and “must also contain . . . a quantification of the city’s existing and projected housing needs for all income levels that shall include the locality’s share of the regional housing need . . . .”

Defendant Southern California Association of Governments is a “public agency organized and existing pursuant to the Joint Exercise of Powers Act (codified

as . . . section 6500 et seq.)” covering several southern California counties, including Orange County and the incorporated cities within its boundaries. (Italics omitted.) In 2006, defendant, in conjunction with the California Department of Housing and Community Development (HCD), began developing its RHNA for the 2006-2014 planning period which, in part, required the development of a methodology for distributing the projected regional housing needs to cities within defendant’s jurisdiction.

Defendant delegated to the Orange County Council of Governments OCCOG, another public agency created under section 6500 that includes the County of Orange and the incorporated cities within its boundaries, “the responsibility for providing data that would be used by defendant when it applied the methodology used to determine the allocation of housing units to jurisdictions within Orange County” and, at “OCCOG’s request . . . incorporated” a study prepared at California State University, Fullerton.

In February 2007, defendant “approved the RHNA methodology and issued a draft regional housing need allocation plan” that allotted over 35,000 residential units to plaintiff, an amount allegedly constituting 43 percent of Orange County’s entire regional housing need. Under the applicable statutory procedure, plaintiff timely filed an appeal of the proposed allocation with defendant’s RHNA appeals board. That board conducted a hearing on plaintiff’s request where plaintiff’s and defendant’s staffs presented written and oral testimony pursuant to sections 65584.05 and 65584.08. The appeals board “issued a final written decision” denying the appeal.

After “revising the allocations of units to certain jurisdictions within Orange County,” defendant then “issued a proposed Final Allocation Plan” that increased plaintiff’s RHNA allocation by over 300 units. Plaintiff submitted written opposition to the plan. In July 2007, defendant’s regional council conducted a public hearing as required by sections 65584.05, subdivision (h) and 65584.05, subdivision (k) where plaintiff presented written and oral testimony opposing the Final Allocation Plan. The regional council approved the final allocation plan without change.

Plaintiff then filed this petition seeking to “vacate and set aside” defendant’s draft allocation, the RHNA appeals board’s denial of its appeal, and the regional council’s final allocation plan, plus a “recalculation of plaintiff’s allocation of new housing units in accordance with . . . sections 65584, 65584.04, 65584.05, and 65584.08 . . . .” The petition alleged that, in making the RHNA decisions, defendant’s appeals board and regional council “failed to conduct . . . fair hearings,” “proceed in a manner required by law,” “support their decisions with findings” or “provide sufficient evidence to support the findings,” and “prejudicially abused their discretion,” thereby breaching defendant’s “duty pursuant to the Housing Element Law to calculate plaintiff’s fair share of housing for each income category . . . .”

Defendant filed a demurrer, arguing the court lacked “jurisdiction of the subject of the petition” for several reasons. First, it asserted the Legislature’s 2004 amendments to the RHNA statutes “specifically removed the judicial writ remedy from the . . . statute.” Second, citing section 65584.05, subdivision (g)’s requirement that it reallocate “any reduction in” one municipality’s RHNA assessment “to all of the jurisdictions” it covers, defendant claimed “the remedy sought . . . will result in judicial consequences that will adversely impact all of defendant’s jurisdictions” and plaintiff has “no cause of action . . . to seek judicial enforcement of another city’s or county’s RHNA allocation.” Finally, noting HCD’s approval of defendant’s final RHNA allocation, defendant claimed it now “has no authority to implement the relief” sought by plaintiff. The trial court sustained the demurrer without leave to amend and entered a judgment dismissing the action.

DISCUSSION

1. Statutory Background

This case presents the question of whether the administrative procedure created to determine a municipality’s RHNA allocation precludes judicial review of that decision.

Under the Planning and Zoning Law (§ 65000 et seq.), local governments must prepare and adopt general plans for their “long-term . . . physical development . . . .” (§ 65300.) One of the essential components of a general plan is a housing element. (§ 65302, subd. (c).)

The Legislature has declared “the availability of housing is of vital statewide importance” (§ 65580, subd. (a)), “the early attainment of” which (§ 65580, subd. (b)), along with the additional goal of providing “housing affordable to low- and

moderate-income households” (§ 65580, subd. (c)), requires the cooperation of government at all levels. Thus, “local and state governments have a responsibility to use the powers vested in them to facilitate the improvement and development of housing to make adequate provision for the housing needs of all economic segments of the community.” (§ 65580, subd. (d).) The statutes governing the development of housing elements express the Legislature’s intent “to assure” local governments “recognize their responsibilities in contributing to the attainment of the state housing goal” (§ 65581, subd. (a)), in part by “preparing and implementing housing elements which, along with federal and state programs, will move toward attainment of that . . . goal” (§ 65581, subd. (b)), and “ensure . . . local governments cooperate with each

other . . . in . . . addressing regional housing needs” (§ 65581, subd., (d)), while “recognizing that each locality is best capable of determining what efforts are required by it to contribute to the attainment of the state housing goal, provided such a determination is compatible with the state housing goal and regional housing needs” (§ 65581, subd. (c)).

A municipality’s housing element “consists of an identification and analysis of existing and projected housing needs and a statement of goals, policies, quantified objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing.” (§ 65583.) It must contain “an assessment of housing needs and an inventory of resources and constraints relevant to the meeting of these needs.” (§ 65583, subd. (a).) This consists of “a quantification of the locality’s existing and projected housing needs for all income levels” that “includes the locality’s share of the regional housing need in accordance with Section 65584” (§ 65583, subd. (a)(1)), “a statement of the community’s goals, quantified objectives, and policies relative to the maintenance, preservation, improvement, and development of housing” (§ 65583, subd. (b)), and “a program which sets forth a schedule of actions

during the planning period, each with a timeline for implementation . . . that the local government is undertaking or intends to undertake to implement the policies and achieve the goals and objectives of the housing element . . . .” (§ 65583, subd. (c).)

As for each municipality’s regional housing need allocation, section

65584, subdivision (b) requires HCD, “in consultation with each council of governments,” such as defendant, to “determine a region’s existing and projected housing need pursuant to Section 65584.01.” This determination must be based on the “objectives” of equitably increasing the housing supply, type, and affordability, encouraging conservation of agricultural and environmental resources through the promotion of infill development, improving the relationship between housing and jobs in the region, and using the allocation of housing needs by income category to eliminate disparities between communities in the region. (§ 65584, subd. (d).) Thus, before a region’s “scheduled housing element revision . . . HCD shall meet and consult with the council of governments regarding the assumptions and methodology to be used by the department to determine the region’s housing needs.” (§ 65584.01, subd. (c)(1).) After this consultation, HCD must “make a determination of the region’s existing and projected housing need,” which must “reflect the achievement of a feasible balance between jobs and housing within the region using the regional employment projections in the applicable regional transportation plan.” (§ 65584.01, subd. (d)(1).)

The council of governments may object to HCD’s decision on certain specified grounds, but the objection “shall also include a proposed alternative determination of its regional housing need . . . .” (§ 65584.01, subd. (d)(1) & (2)(B).) “HCD shall consider the objection and make a final written determination of the region’s existing and projected housing need that includes an explanation of the information upon which the determination was made.” (§ 65584.01, subd. (d)(3).)

Section 65584.04 declares a council of governments shall then “develop a proposed methodology for distributing the existing and projected regional housing need to cities, counties, and cities and counties within the region . . . .” (§ 65584.04, subd. (a).) To do so, the council “shall survey . . . its member jurisdictions to request . . . information regarding a list of factors . . . that will allow the development of the distribution methodology . . . .” (§ 65584.04, subds. (b)(1) & (d).) “Public participation and

access shall be required in the development of the methodology and in the process of drafting and adoption of the allocation of the regional housing needs,” with the “the council . . . conducting at least one public hearing to receive oral and written comments on the proposed methodology.” (§ 65584.04, subd. (c).) “Following the . . . public comment period . . ., and after making . . . revisions deemed appropriate . . . as a result of comments received,” the “council . . . shall adopt a final regional . . . housing need allocation methodology and provide notice of its adoption . . . to the jurisdictions within the region . . . .” (§ 65584.04, subd. (h).)

While the parties to this action were in the process of determining the RHNA allocation for defendant’s region, the Legislature enacted section 65584.08, effective April 10, 2007, which expressly applies to the “revision of the housing element” for municipalities “within defendant’s region . . . .” (§ 65584.08, subd. (b).) Section 65584.08 required defendant to first “develop an integrated long-term growth forecast by five-year increments.” (§ 65584.08, subd. (c)(1).) “Upon receiving the forecast, HCD shall determine the existing and projected housing need for the region in accordance

with . . . Section 65584.01.” (§ 65584.08, subd. (c)(5).) Then defendant was mandated to “conduct a public workshop for the purpose of surveying its member jurisdictions pursuant to subdivision (b) of Section 65584.04.” (§ 65584.08, subd. (d).) In addition, defendant was required to “conduct a minimum of 14 public workshops to discuss the regional growth forecast and the methodology, including the factors, by which housing needs are proposed to be allocated . . . to individual jurisdictions.” (§ 65584.08, subd. (f).)

After adopting a methodology, the next step involved the preparation and revision of a draft allocation plan for the regional housing need assessment. It requires a “council of governments . . . to distribute a draft allocation of regional housing needs to each local government in the region or subregion” “at least one and one-half years prior to the scheduled housing element revision . . . .” (§ 65584.05, subd. (a).) “The draft allocation shall include the underlying data and methodology on which the allocation is based.” (Ibid.)

“Within 60 days following receipt of the draft allocation, a local government may request . . . a revision of its share of the regional housing

need . . . supported by adequate documentation.” (§§ 65584.05, subd. (b), 65584.08, subd. (g) authorizing a local government under defendant’s jurisdiction to request a revision of its regional housing need share on the same grounds and in the same

manner as set out in section 65584.05.) The council of governments must then decide to either “accept the proposed revision, modify its earlier determination, or indicate, based upon the information and methodology . . . why the proposed revision is inconsistent

with the regional housing need.” (§§ 65584.05, subd. (c), 65584.08, subd. (g) “association . . . shall respond to the request in writing . . . and shall describe the rationale for its decision”.)

“If the council . . . does not accept the proposed revised share or modify

the revised share to the satisfaction of the requesting party, the local government

may appeal its draft allocation based upon . . . the following criteria: . . . “The

council . . . failed to adequately consider the information submitted . . ., . . . a significant and unforeseen change in circumstances has occurred . . . that merits a revision of the information submitted,” or “the council . . . failed to determine its share of the regional

housing need in accordance with the information described in, and the methodology established . . . .” (§§ 65584.05, subd. (d), 65584.08, subd. (i) allowing defendant “one appeal of a draft allocation” on similar grounds.)

“The council of governments . . . shall conduct public hearings to hear all appeals . . . . Before taking action on an appeal, the council of governments . . . shall consider all comments, recommendations, and available data based on accepted planning methodologies submitted by the appellant,” and its “final action . . . on an appeal shall

be in writing and shall include information and other evidence explaining how its action is consistent with this article.” (§§ 65584.05, subd. (e), 65584.08, subd. (i).) If an

appeal is successful, “the final action . . . may require the council of governments . . . to adjust the allocation of a local government that is not the subject of an appeal” (§ 65584.05, subd. (e)), but “in no event shall the total distribution of housing

need equal less than the regional housing need, as determined pursuant to Section 65584.01 . . .” (§ 65584.05, subd. (g)).

The “council of governments . . . shall then issue a proposed final allocation,” which “includes responses to all comments received on the proposed draft allocation and reasons for any significant revisions included in the final allocation.” (§ 65584.05, subd. (f); see also § 65584.08, subd. (h).) “The proposed final allocation plan . . . shall also adjust allocations to local governments based upon the results of

the revision request process and the appeals process specified in this section.” (§ 65584.05, subd. (g).) “Within 45 days after the issuance of the proposed final allocation plan . . . the council of governments shall hold a public hearing to adopt a final allocation plan,” and “within 60 days after adoption by the council . . ., HCD shall determine whether or not the final allocation plan is consistent with the existing and projected housing need for the region . . . . HCD may revise the determination of the council of governments if necessary to obtain this consistency.” (§§ 65584.05, subd. (h), 65584.08, subd. (k).)

2. Judicial Jurisdiction

The California Constitution grants “the Supreme Court, courts of appeal, superior courts, and their judges . . . original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition.” (Cal. Const., art. VI, § 10.) The Supreme Court has recognized “the Legislature cannot alter the jurisdiction over extraordinary writs . . . prescribed by the Constitution” (Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 729), and therefore “such jurisdiction could not be enlarged, and . . . could not be curtailed citation” (id. at p. 731).

Nonetheless, it is recognized the Legislature may indirectly regulate the jurisdiction of courts by abolishing or limiting substantial rights (Modern Barber Col. v. Cal. Emp. Stab. Com., supra, 31 Cal.2d at pp. 726-728; 2 Witkin, Cal. Procedure (5th ed. 2008) Courts, § 170, pp. 242-243) and prescribing the procedure by which the courts exercise their jurisdiction (Garrison v. Rourke (1948) 32 Cal.2d 430, 436, overruled on another ground in Keane v. Smith (1971) 4 Cal.3d 932, 939; 2 Witkin, supra, Courts, § 171, p. 243). Citing the foregoing principles, County of San Diego v. State of California (1997) 15 Cal.4th 68 held “‘the jurisdiction thus vested may not lightly be deemed to have been destroyed.’ Citation. ‘While the courts are subject to reasonable statutory regulation of procedure and other matters, they will maintain their constitutional powers in order effectively to function as a separate department of government. Citations. Consequently an intent to defeat the exercise of the court’s jurisdiction will not be supplied by implication.’ Citation.” (Id. at p. 87.) Thus, “the intent to divest the court of jurisdiction . . . is not read into a statute unless that result is expressly provided or otherwise clearly intended.” (Garrison v. Rourke, supra, 32 Cal.2d at p. 435; see also County of San Diego v. State of California, supra, 15 Cal.4th at p. 87.)

3. Analysis

The trial court reached the correct result in this case. There is no dispute defendant followed the statutorily-mandated procedure described above in determining the RHNA allocation for its region. Concededly, the RHNA statutes do not expressly bar a municipality from judicially challenging its RHNA allocation. But, as the foregoing summary of the statutory procedure reflects, the nature and scope of a general plan’s housing element and the length and intricacy of the process created to determine a municipality’s RHNA allocation reflects a clear intent on the part of the Legislature to render this process immune from judicial intervention.

In construing a statute “our fundamental task . . . is to ascertain the Legislature’s intent so as to effectuate the law’s purpose. Citation. We begin our inquiry by examining the statute’s words, giving them a plain and commonsense meaning. Citation. In doing so, however, we do not consider the statutory language ‘in isolation.’ Citation. Rather, we look to ‘the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . Citation.’ Citation. That is, we construe the words in question ‘“in context, keeping in mind the nature and obvious purpose of the statute . . . .” Citation.’ Citation. We must harmonize ‘the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.’ Citations.” (People v. Mendoza (2000) 23 Cal.4th 896, 907-908.)

The RHNA allocation process must be completed in advance of the revision of a municipality’s general plan housing element. It involves several intricate steps. First, it requires the setting of statewide and regional housing goals and the creation of a methodology to quantify the goals and distribute the projected additional housing needs throughout the state. This step mandates consultation between HCD and

the respective councils of government. Second, each respective council of government must create a methodology for distributing its region’s housing needs to the local governments under its jurisdiction. This requires not only consultation between the regional council of government and local governments, but also public hearings to obtain input from a wide variety of concerned parties. Third, the council of government’s proposed allocation of housing units to local governments is subject to review and reassessment at the request of individual governments. Ultimately, each council of government’s final RHNA allocation is subject to further review and revision by HCD to ensure it is consistent with the region’s housing needs.

Plaintiff argues it is only seeking to correct its own RHNA allocation and thus allowing its action to proceed will not derail other municipalities from timely revising their housing elements. But its petition alleges, not that the RHNA allocation for the Orange County subregion is too large, but that defendant allocated too much of the subregion’s RHNA allocation to it. The petition asks the court to vacate and set aside the denial of plaintiff’s appeal of the draft allocation plan and defendant’s final allocation plan, and seeks a “recalculation” of plaintiff’s “allocation of new housing units” under “sections 65584, 65584.04, 65584.05, and 65584.08 . . . .”

Under the RHNA procedure, when a local government successfully obtains a downward revision of its RHNA allocation, the council of governments must then reallocate the excess units to other jurisdictions within the region. (§ 65584.05, subds. (e) “The final action on an appeal may require the council of governments . . . to adjust the allocation of a local government that is not the subject of an appeal” & (g) the council of governments . . . shall adjust allocations to local governments based upon the results of the revision request process and the appeals process”.) Thus, one jurisdiction’s successful appeal affects the RHNA allocation to

other local jurisdictions. It does not merely result in the elimination of one municipality’s excess RHNA allocation.

Consequently, allowing this judicial action to proceed would require the joining of all affected local jurisdictions in the lawsuit, thereby precluding each affected municipality’s completion of its housing element revision. As the trial court noted, “allowing judicial review would . . . delay the allocation for an entire region” and “essentially bottleneck the process and create gridlock while a particular city’s case winds through the courts.” Plaintiff’s claim is thus not only contrary to the relief sought in its petition, but would effectively nullify the cited statutory provisions. “An interpretation that renders related provisions nugatory must be avoided . . . .” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)

One decision on which defendant relies, Tri-County Special Educ. Local Plan Area v. County of Tuolumne (2004) 123 Cal.App.4th 563, presents a situation analogous to this case. In Tri-County, public entities created to assist students requiring access to special education and related services sued a county and several of its officers to reverse the defendants’ decision to terminate funding for mental health services and force defendants to comply with the federal Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.; IDEA). The complaint alleged numerous causes of action, including violation of both the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) and the federal Civil Rights Act (42 U.S.C. § 1983.) The trial court dismissed the action after sustaining the defendants’ demurrers without leave to amend.

Although disagreeing with the trial court’s reasoning the Court of Appeal affirmed. First, the appellate court cited procedures established under the IDEA and the California Code of Regulations providing for an investigation and report by the state Superintendent of Public Instruction upon receipt of a complaint alleging a public agency “had failed or refused to comply with an applicable law or regulation relating to the

provision of free appropriate education to handicapped individuals,” which allowed local public agencies to claim reimbursement for services under the IDEA from a public agency that failed to pay for them. (Tri-County Special Educ. Local Plan Area v. County of Tuolumne, supra, 123 Cal.App.4th at pp. 574-575.) It concluded this “administrative process is fully capable of providing complete relief to appellants.” (Id. at p. 577.)

As for the civil rights claims, which plaintiffs argued were not subject to administrative review, the appellate court ruled as follows: “The considerations that arise in requiring an individual to pursue an administrative remedy within the structure of the governmental entity that has deprived him or her of rights are somewhat different from the considerations when one subordinate government entity is required to invoke the administrative adjudicatory powers of a superior administrative body to resolve a dispute between the complainant and another subordinate entity. The first important consideration is that a governmental entity has no vested, individual rights in the administration of a particular program. Citation. Appellants are purely creatures of statute, and it is clear the Legislature could reassign administration of IDEA programs to a different entity if it chose to do so. If the Legislature were to so choose, appellants would not be entitled to any sort of due process hearing or appeal to contest the action. Citation. Second, and of greater importance, the statutory scheme clearly intends to invest the Superintendent of Public Instruction with the discretion to determine how and whether IDEA will be enforced against a community mental health department. . . . As a result of these two factors, we conclude appellants have no rights enforceable against respondents through other causes of action, at least until the administrative process confers upon them such a right . . . .” (Tri-County Special Educ. Local Plan Area v. County of Tuolumne, supra, 123 Cal.App.4th at pp. 577-578.)

These considerations apply in this context as well. Plaintiff is a governmental entity (Cal. Const., art. XI, § 2; § 34000 et seq.) As explained above, the

structure and scope of the RHNA statutes reflect a clear intent to vest in HCD and the respective council of governments, along with the extensive input from local governments and the public, the authority to set the RHNA allocation for each local government.

Plaintiff argues a construction of the RHNA statutes that eliminates a municipality’s right to seek judicial relief from its housing unit allocation would render the law both absurd and unconstitutional because it makes defendant not only the “executive decision-maker for housing allocations” but “also the final judge, jury and appellate tribunal for any alleged violations of those laws . . . .” Although the RHNA allocation process is primarily legislative rather than adjudicatory in nature and involves the actions of more than a single entity, even where a single administrative agency conducts an adjudicatory proceeding, the Supreme Court has recently reaffirmed that “the combination of investigative, prosecutorial, and adjudicatory functions within a single administrative agency does not create an unacceptable risk of bias and thus does not violate the due process rights of individuals who are subjected to agency prosecutions. Citations.” (Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737.)

As for the RHNA allocation process, it is clear neither defendant nor any other single entity has complete control of the scheme. HCD must initially establish, “in consultation” with the council of governments, the “region’s existing and projected housing need.” (§ 65584, subd. (b).) Each respective council of governments then must develop a methodology for distributing the housing needs to the local governments in its region. Again, by statute, the council of governments must consult with both the affected municipalities and the public in accomplishing this task. (§ 65584.04, subds. (a), (b) & (c).) This participation also spills over into the development of the draft RHNA allocation. (§ 65584.04, subd. (c).) The local governments are then allowed to seek

revision of the draft plan through an appeal to the council of government’s appeals board. In ruling on a request, the latter entity must give reasons for its decision in writing. Further public hearings must follow before the council of governments prepares its final allocation plan. Finally, once that plan is approved at the regional level it must be reviewed and approved by HCD to determine if it is consistent with statewide goals. Claiming “the statutes plainly require a compliant housing element to account for 100percent of the city’s RHNA allocation,” plaintiff argues that without judicial review of the allocation it has no adequate alternative remedy. This is not accurate.

Section 65584 declares, “While it is the intent of the Legislature that cities, counties, and cities and counties should undertake all necessary actions to encourage, promote, and facilitate the development of housing to accommodate the entire regional housing need, it is recognized, however, that future housing production may not equal the regional housing need established for planning purposes.” (§ 65584, subd. (a)(2).) In addition, section 65883, subdivision (b)(2) provides: “It is recognized that the total housing needs identified pursuant to subdivision (a) may exceed available resources and the community’s ability to satisfy this need within the content of the general plan requirements,” and “under these circumstances, the quantified objectives need not be identical to the total housing needs. The quantified objectives shall establish the maximum number of housing units by income category, including extremely low income, that can be constructed, rehabilitated, and conserved over a five-year time period.”

Plaintiff’s claim that the statutory language contained in specific aspects of the housing element contradicts the foregoing provisions is unavailing. As noted, we must consider the RHNA statutes as a whole, harmonizing the various parts of it, and consider them in the context of the overall statutory framework rather than in isolation. (People v. Mendoza, supra, 23 Cal.4th at pp. 907-908.)

Our conclusion is buttressed by a 2005 opinion by the California Attorney General that reached the following conclusion on the effect of section 65883, subdivision (b)(2): “A community may establish its maximum number of housing units by income category that can be constructed, rehabilitated, and conserved over the next five-year period below the number of housing units that would meet the community’s goal of achieving its share of the regional housing needs established pursuant to the Planning and Zoning Law if the community finds that its available resources in the aggregate, including but not limited to federal and state funds for its housing programs, its own local funds, tax or density credits, and other affordable housing programs, are insufficient to meet those needs.” (88 Ops.Cal.Atty.Gen. 84 (2005).) Even though the Attorney General’s opinion is not binding on us, it is entitled to great weight and, in the absence of contrary controlling authority, persuasive. (Rodeo Sanitary Dist. v. Board of Supervisors (1999) 71 Cal.App.4th 1443, 1448-1449.)

Support for our decision also exists in the 2004 amendments to the RHNA statutes. Before those amendments, former section 65584, subdivision (c)(4) declared, “The determination of the council of governments concerning a city or county’s share of the state housing need . . . shall be subject to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.” This provision was eliminated in 2004. In addition, defendant notes a 2005 amendment to section 65589.5, a statute involving very low-, low-, and moderate-income housing developments, that added a provision declaring “any action brought to enforce the provisions of this section shall be brought pursuant to Section 1094.5 of the Code of Civil Procedure . . . .” (§ 65589.5, subd. (m).)

While the latter amendment is of little relevance here, we conclude the 2004 repeal of the judicial remedy reinforces our conclusion the Legislature clearly intended to eliminate judicial remedies for challenging a municipality’s RHNA allocation. “Under the rules governing statutory construction, when the Legislature

enacts an amendment, we presume it ‘“indicates that it thereby intended to change the original act by creating a new right or withdrawing an existing one.”’ Citation. ‘“Therefore, any material change in the language of the original act is presumed to indicate a change in legal rights.”’ Citations.” (Garrett v. Young

(2003) 109 Cal.App.4th 1393, 1404-1405.) This presumption applies where “the Legislature . . . deletes an express provision of a statute.” (People v. Valentine (1946) 28 Cal.2d 121, 142; see also Hoschler v. Sacramento City Unified School Dist. (2007) 149 Cal.App.4th 258, 269 “‘Where the Legislature omits a particular provision in a later enactment related to the same subject matter.) We must presume the Legislature’s deletion of the express provision allowing review by administrative mandamus reflects its intent to preclude that judicial remedy to challenge a municipality’s RHNA allocation under the revised law.

Plaintiff argues the use of legislative history reflects the RHNA statutes are ambiguous and therefore fail to express a clear intent to eliminate the judicial remedy of mandamus. But “‘the very fact that the prior act is amended demonstrates the intent to change the pre-existing law, and the presumption must be that it was intended to change the statute in all the particulars touching which we find a material change in the language of the act.’” (Loew’s v. Byram (1938) 11 Cal.2d 746, 750.) Thus, when considered along with the clear intent discussed above, the foregoing principles of statutory construction simply buttress our conclusion.

Given the RHNA statutes’ nature, their allowance for public input, and their lengthy and extensive administrative procedure, it is clear the Legislature intended to eliminate resort to traditional judicial remedies to challenge a local government’s regional housing needs allocation so as to avoid the disruption of local planning that would result from interference through the litigation process. Thus, contrary to plaintiff’s

argument, the statutes governing the RHNA allocation procedure do reflect a clear intent to preclude judicial intervention in the process and the trial court properly found it lacked jurisdiction to review the propriety of plaintiff’s RHNA allocation.

DISPOSITION

Appellant’s requests for judicial notice are granted. The judgment is affirmed. Respondent shall recover its costs on appeal.

CERTIFIED FOR PUBLICATION

RYLAARSDAM, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

STEVEN CHOI et al.,

Plaintiffs and Appellants,

v.

ORANGE COUNTY GREAT PARK CORPORATION,

Defendant and Respondent.

G040823

(Super. Ct. No. 30-2008-00101131)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Derek W. Hunt, Judge. Reversed and remanded.

Enterprise Counsel Group, David A. Robinson, Benjamin P. Pugh and Timothy M. Kowal for Plaintiffs and Appellants.

Nossaman, Robert D. Thornton, Rick E. Rayl and Bradford B. Kuhn for Defendant and Respondent.

* * *

Plaintiffs and appellants Steven Choi and Christina Shea, in their capacities as directors of defendant Orange County Great Park Corporation, appeal an order denying them attorney fees under Code of Civil Procedure section 1021.5 (section 1021.5) and Corporations Code section 6337, claiming the evidence showed they met each of the criteria necessary to recover such fees. We agree they were entitled to attorney fees under section 1021.5 and remand for the trial court to determine the amount.

FACTS AND PROCEDURAL HISTORY

Defendant is a public benefit nonprofit corporation formed in 2004 to develop the former United States Marine Corps Air Station property. It will manage over $400 million dollars in connection with development of the Great Park on that property. Defendant’s board consists of nine members, the five members of the Irvine City Council and four other at-large directors chosen by the other board members. Plaintiffs are minority members of the board. The three other Irvine City Council members, led by Larry Agran, are the majority in opposition to plaintiffs, and, according to an Orange County Grand Jury report, control defendant.

For the first three years after defendant’s formation defendant had three CEO’s, each of whom was an Irvine city employee. After the third CEO, Marty Bryant, resigned in 2007, defendant agreed to conduct a nationwide search for a replacement. Shea and a previous director of defendant, Richard Sim, who had been an executive with the Irvine Company, had recommended such a search since 2005.

Defendant formed a search committee consisting of four of the directors, including Agran but not plaintiffs, and two employees of the City of Irvine. The committee hired a Santa Ana-based recruiting firm, The Mills Group, to conduct a nationwide search. Mills ran advertisements and obtained some names from members of

the search committee to find candidates and reported it received about 150 resumes. Mills narrowed potential candidates to the top twelve and with the search committee interviewed five of them. From those five they proposed one candidate, Kurt Haunfelner, a vice-president of the Chicago Museum of Science and Industry, to be interviewed by the full board. Before the board voted Shea asked Mills for copies of the resumes of the five candidates but was refused. Defendant offered the position to Haunfelner but he declined.

Mills then notified Shea that the search committee recommended the second choice candidate, Rod Cooper, the Great Park’s then operations manager, be offered the position. Shea asked for a copy of Cooper’s resume and for the full board to interview him but was refused. Cooper withdrew his name from consideration before he was offered the position.

Shortly thereafter a story in the Los Angeles Times revealed that Haunfelner was “a longtime friend” of Agran and his late brother had been an aide to Agran. This information had not been disclosed to the board prior to the vote offering Haunfelner the position. The same story also reported that the most recent CEO, Bryant, a long-time Irvine city employee, had an 18-year-old conviction for embezzling funds from the City of San Juan Capistrano to purchase cocaine. A subsequent story reported Agran as saying it was not defendant’s responsibility to screen the CEO’s background but that it should have been done by the Irvine City Manager.

Plaintiffs again asked to see all resumes Mills had obtained during the search process. Defendant refused to provide the documents because, according to Agran, it had the duty to protect the privacy of the candidates and feared plaintiffs might publicly disclose the names. Plaintiffs made at least two additional written demands to inspect the documents, one to which they never received a direct answer and one to which they received no reply. Documents were never provided.

Plaintiffs then filed a petition for writ of mandate under Corporations Code section 6334 and Code of Civil Procedure section 1085 to compel defendant to produce the documents. In response the board voted seven to one to have the search committee keep the identity and resumes of the candidates confidential except for a candidate the search committee recommended be hired. Defendant answered and demurred to the petition, arguing that the City of Irvine was an indispensable party because it owned the documents. Both the demurrer and the petition itself were set for hearing.

The day before the hearing, the parties entered into a stipulation to settle the controversy. Defendant agreed to provide plaintiffs “with complete copies of all materials collected or prepared by Mills and/or the . . . search committee in conjunction with the efforts to recruit a new CEO for the Great Park . . . . . . . . . at a properly convened closed-session meeting of the Great Park’s Board of Directors authorized pursuant to Government Code section 54950 et seq. (Brown Act) . . . .” The parties also agreed that “all information disclosed at such meeting, including without limitation the identity of the candidates, shall be treated in accordance with the Brown Act.” The stipulation also stated defendant would provide plaintiffs with additional documents related to recruitment of the CEO as they were received or created. The City of Irvine was not a party to the stipulation.

Plaintiffs filed a motion to recover attorney fees under section 1021.5 and Corporations Code section 6337. In denying the award the court stated it “did not know who plaintiffs prevailed over. They certainly have not prevailed in the traditional sense of a lawsuit . . . because there is no judgment. There is nothing of a character that would represent that there was adjudication of the case. I don’t think it was adjudicated. It was settled. . . . It was probably a reasonable solution to the problem, but . . . handing out $44,000 for a settlement of this sort just strikes me as being a radical over-interpretation of what the concept of prevailing parties means under the circumstances of this case.” The court also described the settlement as “a meeting in a closed door room where a lot of people went through a lot of documents that weren’t disclosed to the public” and stated it could not identify any “vast public benefit” resulting from it. It reiterated, “Basically two people went into a room which no one else was allowed to go into and they spent some time doing this and that. That doesn’t strike me as a . . . public benefit which can be quantified, publicized.” The court did not rule on the argument that fees should be awarded under Corporations Code section 6337.

DISCUSSION

1. Section 1021.5

a. Introduction

Section 1021.5 provides that a prevailing party may recover attorney fees when its action “has resulted in the enforcement of an important right affecting the public interest”; “a significant benefit . . . has been conferred on the general public or a large class of persons”; “the necessity and financial burden of private enforcement . . . make the award appropriate”; and the interest of justice dictates the fees should not be “paid out of the recovery.”

“Whether the applicant for attorney fees has proved section 1021.5’s elements is a matter primarily vested in the trial court. Citation. ‘We review the entire record, attentive to the trial court’s stated reasons in denying the fees and to whether it applied the proper standards of law in reaching its decision. Citation. We will reverse the trial court’s decision only if there has been a prejudicial abuse of discretion, i.e., when there has been a manifest miscarriage of justice or “‘where no reasonable basis for the action is shown.’”’ Citation.” (Wal-Mart Real Estate Business Trust v. City Council of City of San Marcos (2005) 132 Cal.App.4th 614, 620.) In our review we must determine

“‘whether the grounds given by the court for its denial of an award are consistent with the substantive law of section 1021.5 and, if so, whether their application to the facts of the case is within the range of discretion conferred upon the trial courts under section 1021.5, read in light of the purposes and policy of the statute.’ Citation.” (Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (2000) 79 Cal.App.4th 505, 512.)

Plaintiffs contend the court erred in failing to award them attorney fees under section 1021.5 and we agree. Each of the factors has been satisfied.

b. Prevailing Party

Plaintiffs assert they prevailed because they obtained the result they sought in the petition, access to the documents. They are correct. The stipulation provided plaintiffs would be given “complete copies of all material” used in the selection process and set out a detailed list of those documents, including resumes, correspondence, and documents prepared by Mills in ranking applicants. This satisfied plaintiffs’ prayer in the petition for an order compelling defendant to allow plaintiffs to inspect and copy those documents.

Defendant’s counter arguments have no merit. Its claim plaintiffs did not achieve their desired result, which it describes as “unfettered access” to the documents, is wrong. Defendant points to nothing in the record showing plaintiffs sought “unfettered access.” That the stipulation requires copies be provided in a Brown Act closed meeting of the board does not limit plaintiffs’ recovery for purposes of this analysis. Plaintiffs never demanded they be given the documents without the confines of the Brown Act. And defendant could have agreed to provide the documents with this provison when

plaintiffs first requested them, but instead flatly refused and forced plaintiffs to file the writ petition.

The court’s statement it did not know who had prevailed is also unpersuasive. The record plainly shows plaintiffs prevailed. Moreover, the court’s conclusion plaintiffs could not have prevailed because there was no adjudication is not consistent with applicable authority, which provides that a party may prevail even where there is a settlement. “In assessing whether a party is a successful party, a ‘broad, pragmatic view’ is applied. Citation. It is not necessary that the party seeking fees have obtained a final favorable judgment. Citation. ‘The critical fact is the impact of the action, not the manner of its resolution. If the impact has been the “enforcement of an important right affecting the public interest” and a consequent conferral of a “significant benefit on the general public or a large class of persons” a section 1021.5 award is not barred because the case was won on a preliminary issue citation or because it was settled before trial. Citation.’ Citation.” (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 649; see also Wal-Mart Real Estate Business Trust v. City Council of the City of San Marcos, supra, 132 Cal.App.4th at p. 621 “ruling on the ‘underlying issue’” unnecessary to be deemed “successful party”.)

Defendant argues we do not have the full record and thus should not “second guess” the trial court’s decision. It relies on an ex parte hearing that purportedly provided “substantial information concerning the background of the dispute . . . .” This argument does not withstand scrutiny. First, because we do not have a record of the hearing we cannot validate defendant’s description of the information provided. More importantly, it is of no consequence. What matters is what plaintiffs sought and that they achieved it, and that is in the record.

We also reject defendant’s attempt to recharacterzie this case as a declaratory relief action in which the settlement “protected both sides’ interests” and

defendant “obtained what it sought in litigation.” We give no credence to its assertion plaintiffs did not prevail because if defendant had filed a declaratory relief action first, it would be the prevailing party. There is absolutely nothing in the record to suggest defendant would have taken any action to resolve this dispute. Defendant’s position that necessitated the writ petition was a refusal to turn over any documents to plaintiffs under any circumstances. The fact it finally agreed to do so, albeit under Brown Act terms, was not a win for defendant; it was a complete change of position. Defendant unequivocally refused to provide documents prior to the litigation and opposed the petition. Likewise, its claim that if anyone prevailed it was defendant is spurious.

c. Important Right Vindicating a Public Interest Resulting in a Significant Public Benefit

We must also determine whether plaintiffs’ action “resulted in the enforcement of an important right affecting the public interest” and conferred “a significant benefit” on “the general public or a large class of persons” within the meaning of section 1021.5. In assessing whether an action has enforced an important right, “courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 936, fn. omitted.) As to the benefit, it “may be conceptual or doctrinal and need not be actual and concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient. . . . The benefit must inure primarily to the public. Citation. Thus, ‘the statute directs the judiciary to exercise judgment in attempting to ascertain the “strength” or “societal importance” of the right involved.’ Citation. An effect upon the public interest is generally considered to require an impact on those other than persons directly involved.

Citation.” (Braude v. Automobile Club of Southern California (1986) 178 Cal.App.3d 994, 1011.)

Plaintiffs satisfied these factors. As directors plaintiffs owed a fiduciary duty to defendant’s constituents, the residents of Irvine, Orange County, and the greater community the Great Park will serve. That duty included “proper governance” of the board and the selection of a suitable CEO. (See Hartman v. Hollingsworth (1967) 255 Cal.App.2d 579, 581-582, superseded by statute on another ground in Penasquitos, Inc. v. Superior Court (1991) 53 Cal.3d 1180, 1184 directors’ “unqualified right of inspection” assists performance of fiduciary duty.)

Given the checkered history of the CEO search and the ongoing public criticism of the “revolving door of Great Park executives” (Barboza, Irvine council members question Great Park CEO search, L.A. Times (Feb. 6, 2008)), the method used for selection of the CEO should be beyond reproach. Plaintiffs’ request for documents to determine how the search had been conducted to date was an act to maintain the integrity of the process itself, a significant benefit to the public, protecting its interest.

Additionally, review of the documents would aid plaintiffs in selecting the best possible CEO, not necessarily a person connected to the City of Irvine or one of its political leaders. This is especially important given that out of 150 resumes reportedly collected from within and without the United States the selection committee’s first choice had political ties to Agran and the second choice was another City of Irvine employee. This does not give the appearance of fairness or impartiality. Moreover, as plaintiffs note, defendant controls more than $400 million in public funds the CEO will be entrusted to manage.

Seeking the documents also served to enforce plaintiffs’ absolute inspection rights as directors of a public benefit corporation, granted to them by both defendant’s bylaws and the Corporations Code. Defendant’s bylaws dictate that “every director

shall have the absolute right at any reasonable time to inspect the corporation’s . . . recordsand documents of every kind . . . including the right to copy and make extracts of documents.” Corporations Code section 6334 states: “Every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind . . . of the corporation of which such person is a director.” Further, the California Constitution provides for “the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. 1, § 3.)

Obtaining access to the documents achieved the policy set out in Corporations Code section 6334, a fundamental legislative goal, which satisfies the requirements of section 1021.5. (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at pp. 935-936.) And plaintiffs could not fulfill their fiduciary duty to use their best efforts to effectuate a fair and legitimate selection process without seeing the documents.

In finding there was no public benefit, the court characterized the stipulation and order requiring disclosure of the documents as being the same as “any other discovery order.” It did not see how the public benefited from plaintiffs being able to review the documents and described it as “just a political argument between politicians.” And when plaintiffs’ lawyer explained that part of the benefit was having plaintiffs, as directors, overseeing the hiring of the CEO, the court asked, “How do we know that the public benefited from that?” It also seemed to believe that there was no public benefit because plaintiffs had not demonstrated that the board majority had hired a “crony” or that without the suit the Great Park would not be built. Defendant concurs there was no benefit because plaintiffs did not “prove that the CEO search was tainted.” (Bold, underscoring, and some capitalization omitted.)

But this analysis is based on the wrong standard. As set out in Braude v. Automobile Club of Southern California, supra, 178 Cal.App.3d 994, “the benefit may be conceptual or doctrinal and need not be actual and concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient.” (Id. at p. 1011.) That the dispute may have involved political wrangling does not mean there was no significant public interest. The language of section 1021.5 by its terms encompasses disputes involving political opponents. In addition, plaintiffs did not have to prove the selection process was tainted; they had to use their best efforts to ensure it was not.

Defendant emphasizes that plaintiffs agreed to the process by which selection of the CEO was to be accomplished, including formation of a search committee and hiring Mills. Similarly, it points to all the documents plaintiffs did see prior to their demand and commencement of the litigation, including advertisements, a detailed summary of what Mills and the search committee had done to that point, a summary of the qualifications of the top five candidates, and the resume of the candidate Mills proposed for the job. It argues that, based on these facts, plaintiffs were able to oversee the search and ensure its legitimacy.

But, as defendant acknowledges, plaintiffs sought documents after the validity of the search process was called into question, first when the search committee recommended only one candidate for consideration, who turned out to have political ties to Agran, and again when the second choice, a City of Irvine employee, withdrew from consideration. Even though plaintiffs originally did agree to the method of selection, that does not mean they relinquished their rights to review documents or could abdicate their continuing responsibility concerning the selection process, especially once there was a serious question of whether the search had been compromised and even though they had been given summaries of the search process to date. And the fact none of the directors

had been given copies of the resumes is not relevant. There is no evidence any other director asked to see them and if they had they had the same rights as plaintiffs.

Defendant argues plaintiffs’ demands for information were unreasonable and only to further their own political and personal goals, not to ensure a fair selection of the CEO. It maintains that its primary concern was protecting the candidates’ confidentiality and justified withholding the documents plaintiffs sought, claiming plaintiffs might have used the candidates as “unwitting pawns in their ongoing argument” with the majority members of the board. It concludes it was “not going to allow plaintiffs . . . unfettered access to the candidates’ confidential information.”

But, although there is evidence some information as to applicants was leaked, there is no evidence plaintiffs were the source. Moreover, defendant presumably had the same concern when it entered into the stipulation to provide the documents and, by limiting access under the requirements of the Brown Act, it was able to protect confidentiality.

d. Necessity of Lawsuit

In addition, filing the action was necessary for plaintiffs to obtain access to the documents. There is not a whit of evidence that defendant would have made the documents available had it not been filed.

e. Payment of Fees From Award

The final factor to be satisfied is that fees should not be paid out of the award to plaintiffs. Here plaintiffs did not seek monetary damages nor were any awarded. Thus there is no settlement out of which plaintiffs could pay the attorney fees. Moreover, as discussed above, given the fact that plaintiffs’ personal recovery was minimal if anything, the interests of justice dictate that they be awarded attorney fees.

f. Reversal of Order and Remand for Determination of Amount

As noted above, we are aware of the trial court’s discretion to decide whether attorney fees are warranted. However, the trial court’s discretion is not unlimited and “‘reversal is appropriate “where no reasonable basis for the action is shown.” Citation.’ Citations.” (Baggett v. Gates (1982) 32 Cal.3d 128, 143.) As discussed above, the ruling was based on erroneous beliefs that there had to be an adjudication of the matter and that there had to be a concrete or actual benefit. Thus, we reverse the order.

Plaintiffs request that we remand the matter to the trial court for an adjudication of the amount of fees to be awarded. Defendants’ claim to the contrary, that plaintiffs are asking us to award them the full amount of attorney fees they sought, is disingenuous. The trial court does have discretion to decide the amount of fees to be awarded (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 321-322) and we remand the case for it to make such a determination.

2. Corporations Code Section 6337

Plaintiffs contend the trial court abused its discretion because it failed to rule on the request for fees under Corporations Code section 6337. By contrast, defendant argues section 6337 applies to the exclusion of section 1021.5 and plaintiffs did not meet its requirements. Because we have determined plaintiffs were entitled to fees under section 1021.5, we need not decide their entitlement under Corporations Code section 6337. Additionally, because plaintiffs demanded the documents not only under

Corporations Code section 6334 but also under defendant’s bylaws, we need not decide the question of whether Corporations Code section 6337 controls and supplants section 1021.5 when documents are sought under Corporations Code section 6334.

DISPOSITION

The order is reversed and the case is remanded to the superior court for a determination of the amount of attorney fees to which appellants are entitled under Code of Civil Procedure section 1021.5. Appellants are entitled to costs on appeal.

CERTIFIED FOR PUBLICATION

RYLAARSDAM, ACTING P. J.

WE CONCUR:

O’LEARY, J.

IKOLA, J.

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

YUKI KOBAYASHI,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

DOUGLAS HAN,

Real Party in Interest.

G042173

(Super. Ct. No. 30-2009-00122583)

O P I N I O N

Original proceedings in the Court of Appeal for the State of California; petition to file notice of appeal by person who appears to be a vexatious litigant. Petition denied.

Yuki Kobayashi in pro per., for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

* * *

I

A Yuki Kobayashi was declared a vexatious litigant, subject to a prefiling order requiring him to obtain permission to file any new litigation, in a case arising in Los Angeles Superior Court, case number BC170895.

But is that Yuki Kobayashi the same Yuki Kobayashi who now seeks to file a notice of appeal in an Orange County Superior Court action he has brought against Douglas Han? There is a Judicial Council form (MC-701) for use by individuals who have been declared vexatious litigants when they want to file new litigation. In the case before us, our Yuki Kobayashi has doctored that form to assert that he never was a vexatious litigant in the first place, and is a victim of mistaken identity.

Under oath, this Yuki Kobayashi states: “I have never been determined to be a vexatious litigant but the trial court clerk requires me to obtain prior court approval to file any new litigation in which I am not represented by an attorney.” In an attachment, Kobayashi relates that because he did not obtain a prefiling order in the trial court, the trial court dismissed his action against Han. He now seeks to appeal that dismissal, and his application form is intended to file the notice of appeal so he can do just that.

We deny his application in a published three judge opinion so as to offer guidance to other courts who may also be faced with claims of mistaken identity by persons with the same name as a vexatious litigant.

II

Three aspects of the prefiling statute must first be noted:

The Judicial Council is required, under section 391.7, subdivision (e) of the Code of Civil Procedure, to keep a list of persons declared by courts to be vexatious litigants subject to prefiling orders.

While the Judicial Council is required to keep a list, it is not required to make the list public. Nothing in section 391.7, the prefiling order statute, requires the Judicial Council to make the list public. Rather, section 391.7, subdivision (e) provides that the list is to be disseminated annually to “clerks of the courts of this state.”

When a person is declared to be a vexatious litigant and subject to a prefiling order, there is a particular form, MC-700, prescribed by the Judicial Council to be used to make the prefiling order. The form itself orders the court clerk to send it to the Judicial Council. The form also requires the name and address of the individual subject to the prefiling order. Like the names on the list, there is nothing in the statute that requires the address of a vexatious litigant be public.

III

We think there is a good reason that the MC-700 form should not be public. If the MC-700 form with the address were public, a vexatious litigant could claim to be someone else by the expedient of falsifying his or her address. As things now stand, any court clerk, faced with a claim from a propria persona (“pro per”) plaintiff with the same name as someone on the vexatious litigant list, may request a copy of the form MC-700 from the Judicial Council. If the address on the MC-700 form matches the address given by the plaintiff before the clerk in the proposed pleading, it is clear that the claim of mistaken identity is spurious.

In the case before us, for example, this Yuki Kobayashi gives as his address in his application a certain street and apartment number in Los Angeles. This court has obtained from the Judicial Council the address of the particular Yuki Kobayashi who was declared a vexatious litigant in Los Angeles Superior Court case number BC170895.

And, guess what? They are the same.

There is nothing in this Yuki Kobayashi’s application to indicate that he shares the same name as a father or son who lives with him and who also happens to be the vexatious Yuki Kobayashi. Under such a circumstance, the odds that this Yuki Kobayashi is a different Yuki Kobayashi than the one declared to be a vexatious litigant in the Los Angeles litigation must be taken to be so low as to be nil. That is, in the case before us, it is a virtual certainty that this Yuki Kobayashi is prevaricating — the polite word — when he stated in his application, “I have never been declared a vexatious litigant.”

IV.

The question of the falsity of Kobayashi’s mistaken identity claim does not end the inquiry, of course. As explained in both Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 48-49, and Luckett v. Panos (2008) 161 Cal.App.4th 77, 80, California’s vexatious litigant statutes are constitutional because they allow vexatious litigants to keep filing lawsuits; the statutes are narrowly drawn so that vexatious litigants simply must comply with reasonable limitations, such as obtaining a prefiling order.

The standard by which an appellate court presiding judge determines whether a vexatious litigant may obtain a prefiling order to file a notice of appeal was recently articulated in In re R.H. (2009) 170 Cal.App.4th 678. The standard is: “the simple showing of an arguable issue.” (Id. at p. 705.)

In the case before us, we hold that a vexatious litigant who, in his application, falsely claims not to be a vexatious litigant when such a claim is so readily disproven by a simple comparison of addresses, has manifestly failed to show an arguable issue on appeal when the issue on appeal itself is the identity of the vexatious litigant. The Luckett v. Panos decision explained the importance of honesty in an application was factor number one in determining whether a vexatious litigant has mended his ways and may be relieved of vexatious litigant status. (See Luckett v. Panos, supra, 161 Cal.App.4th at p. 93.) Given that much vexatious litigation is the product of the vexatious litigant’s propensity for dishonesty, requiring honesty in the very application for a prefiling order itself is the least that can be expected in determining whether proposed litigation has merit. Under this standard, Kobayashi has failed to raise an “arguable issue” in regard to his proposed appeal.

V.

Courts occasionally make recommendations that the Judicial Council take some sort of action. (E.g., Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1369, fn. 20 many of whom are self-represented.”.)

On the one hand, it is easy for vexatious litigants to make claims of mistaken identity. But on the other hand, our judicial system must protect the rights of innocent litigants who really do have the misfortune of simply sharing the same name as a vexatious litigant, or who, perhaps because of some typo, might be mistakenly placed on the vexatious litigant list.

We therefore recommend that the Judicial Council should consider drawing up a list of protocols to expedite claims of persons claiming merely to have the same name as vexatious litigants, or who believe that their name was mistakenly put upon the list. (Cf. Ibrahim v. Department of Homeland Security (N.D. Cal. 2006) 2006 WL 3190670 at p. 5 noting Homeland Security’s “Passenger Identification Verification” procedures to guard against innocent persons being mistaken for persons on the “No-Fly List” and to allow persons who believe they were mistakenly included on the No-Fly List to seek administrative review of that placement.)

Here are a few (we hope inexpensive) ideas for the Judicial Council to consider:

(1) Establishing a quick and confidential means by which court clerks can readily cross-check the address of the person established to be a vexatious litigant with the person who proposes to file new litigation. (For example, a clerk might be able to quickly pull up the MC-700 address at the file window when a pro per litigant whose name is on the vexatious litigant list attempts to file new litigation.)

(2) Requiring that any assertion by a pro per litigant who has the same name as a vexatious litigant that he or she is not that person be under oath.

(3) Preparation of a new form for use by persons claiming only to share the same name as a vexatious litigant in which they may provide, confidentially to the clerk of the court, such details about their identity (e.g., stating under oath their address as of the date of the original order declaring the person with the same name to be a vexatious litigant) that the court clerk court could readily ascertain whether the person seeking to file the new litigation really had been declared a vexatious litigant in earlier litigation.

VI.

Two thoughts still need to be addressed. The first is contempt. As the Supreme Court stated in In re Aguilar (2004) 34 Cal.4th 386, 394: “An intentionally false statement made by an attorney to a court clearly constitutes a contempt of court.” (See e.g., Vaughn v. Municipal Court (1967) 252 Cal.App.2d 348, 358 not under oath.)

Pro per litigants are held to the same standards as attorneys. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 “A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts;

accord, Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1281 (dis. opn. of Bedsworth, J.) pro pers should not be treated the same “only different”.) We see no reason why the rules of professional conduct, at least as those rules govern conduct in the actual course of litigation, should not apply to pro per litigants in the very cases where pro per litigants elect to act as their own attorneys. To say otherwise would be to give pro per litigants (and particularly vexatious litigants representing themselves) an unfair advantage over parties represented by attorneys bound by that code. Under those rules, an attorney may not intentionally mislead a court. (See Bus. & Prof.Code, § 6068, subd. (d); Rules Prof. Conduct, rule 5-200(B).) Neither may a pro per.

The second thought is perjury. Kobayashi stated under penalty of perjury of the laws of the State of California that his statement that he has never been determined to be a vexatious litigant was “true and correct.” We therefore direct the clerk of this court to send a copy of this opinion to the District Attorneys in both Los Angeles and Orange County, and to the Attorney General, for them to take whatever action they may deem fit.

VII.

Under the standard articulated in In re R.H., this Yuki Kobayashi has manifestly failed to raise an arguable issue about his identity. His application to file new litigation, i.e., to file a notice of appeal from the trial court’s order denying his prefiling request, is therefore denied. Since this case never got to the appeal stage, there are no costs.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

MOORE, J.