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  Thursday, November 29, 2018  
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The following caselaw summaries are provided as a courtesy to Los Angeles County Bar Association members by the Metropolitan News-Enterprise www.metnews.com. Summaries from the past 90 days are archived and searchable on the LACBA Web site at www.lacba.org/news-and-publications/daily-ebriefs.
CALIFORNIA SUPREME COURT
Criminal Law and Procedure
Where a defendant's brief refusal to come to court did not have a "tendency in reason to prove" consciousness of guilt, the evidence of his absence should have been excluded as irrelevant. The admission of this evidence, and a jury instruction allowing the jury to treat the defendant's absence as consciousness of guilty, violated due process.

People v. Gomez - filed Nov. 29, 2018
Cite as 2018 S.O.S. 5583
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CALIFORNIA COURT OF APPEAL
Criminal Law and Procedure
Commercial Code Sec. 9609 does not provide a defense to a charge of felony vandalism. A defense attorney did not provide ineffective assistance where counsel did not request a clarification of a jury instruction where the record revealed at least one tactical reason for not providing additional guidance to the jury.

People v. Bonilla - filed Nov. 29, 2018, Third District
Cite as 2018 S.O.S. 5609
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Criminal Law and Procedure
The facial constitutionality of Evidence Code Sec. 1108 is settled law. Similarity between the charged and uncharged sexual offenses it not required for the uncharged offenses to be admissible under Sec. 1108, but it is a circumstance that cuts in favor of admissibility. The ruled from McKinney v. Rees has no application in the context of Sec. 1108 evidence. CALCRIM No. 1191 does not weaken the burden of proof to less less than proof beyond a reasonable doubt.

People v. Phea - filed Nov. 28, 2018, Third District
Cite as 2018 S.O.S. 5614
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Real Property
The lack of specificity to narrow the scope of an easement does not make the easement objectively "ambiguous" as a matter of law. Since the parties to an express right-of-way easement presumptively contemplate "normal future development," such an easement will generally not be restricted to its historic use. A bona fide purchaser for value who acquires his interest in real property without notice of another's asserted rights in the property takes the property free of such unknown rights.

Zissler v. Saville - filed Nov. 29, 2018, Second District, Div. Six
Cite as 2018 S.O.S. 5626
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Trusts
Even though a decedent's estate is the named defendant in actions under Probate Code Sec. 550 through Sec. 555, it is not a party under Code of Civil Procedure Sec. 998 that must pay specified costs after rejecting a reasonable settlement offer.

Meleski v. Estate of Hotlen - filed Nov. 29, 2018, Third District
Cite as 2018 S.O.S. 5633
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