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IN REGARD TO CALIFORNIA‚ÄôS ‚ÄúNO-FAULT‚ÄĚ DIVORCE

8A Cal D 2d-387

Cal.App. 1974.  Procedural due process requires that the property of a deprivation of substantial right to be resolved in a manner consistent with essential fairness.  Ursino v. Superior Court, In and For City and County of San Francisco, 114 Cal.Rptr. 404, 39 C.A.3d 611.8

A Cal D 2d-382

Cal.App. 1 Dist. 1983.  Substantive due process essentially requires protection from arbitrary legislative action; under that principle, a deprivation of property is justified only if the conduct from which depravation flows is prescribed by reasonable legislation reasonably applied, i.e. the law must not be unreasonable, arbitrary or capricious but must have a real and substantial relation to the object sought to be obtained.  Armstrong v. San Mateo County, 194 Cal.Rptr. 294, 146 C.A.3d 597.

Cal.App. 2Dist. 1984.  For substantive due process, rational basis test is that the law must not be unreasonable, arbitrary, or capricious but must have a real and substantial relation to object sought to be obtained.  U.S. C.A. Const.Amends. 5, 14.  Goggin v. California State Personnel Bd., 202 Cal.Rptr. 587, 156 C.A.3d 96.

Cal.App. 2Dist. 1984.  Substantial due process requires only that law not be unreasonable, arbitrary, or capricious, and that it have real and substantial relation to object sought to be obtained.  U.S.C.A. Const.Amends. 5, 14.  Interstate Marina Development Ca. v. Los Angeles County, 202 Cal.Rptr. 377, 155 C.A.3d 435.

Cal.App. 3Dist. 1986.  Unless application of statute impinges upon fundamental rights, initial question posed by substantive due process challenge is whether application is procedurally fair and reasonably related to proper legislative goal.  U.S.C.A. Const.Amend. 14; West's Ann.Cal. Const Art. 1, Sec. 7(a).  In re Marriage of Siller, 231 Cal.Rptr. 757, 187 C.A.3d 36, review denied.

8A Cal D 2d-382

Cal.app. 5Dist. 1986.  Due process in not violated as long as statute procedurally is fair and is reasonably related to proper legislative goal.  U.S.C.A Cosnt.Amends. 5, 14.  People v. Flores, 223 Cal.Rptr. 465, 178 C.A.3d 74, review denied.

Cal.App. 1979.  Substantive due process requires that legislation must not be unreasonable, arbitrary or capricious but must have a real and substantial relation to object sought to be obtained.  U.S.A.A.Const Amend. 14.  Adoption of D.S.C., 155 Cal.Rptr. 406, 93 C.A.3d 14.

Constitutional guarantee of Due Process "which are so rooted in the traditions and conscience of our people as to be ranked as fundamental of are implicit in the concept of ordered liberty."  U.S.C.A. Const. Amend. 14.  Rochin v. People of Cal., 72 S.Ct. 205, 342 U.S. 165, 96 L.Ed. 183, 25 A.L.R.2d 1396.

Law Rev. 1974.  The due process clause invoked to invalidate state action found to be arbitrary or capricious.  6 Southwestern U.L.Rev 617.

8A Cal D 2d-383

Cal.App.  1970. Concept of over breadth rests on principles of substantive due process which forbid prohibition of certain individual freedoms and issue is whether language of statute, given its normal meaning, is so broad that its sanctions may apply to conduct protected by the Constitution.  Castro v. Superior Court for Los Angeles County, 88 Cal.Rptr. 500, 9 C.A.3d 675.

8A Cal D 2d-472.

D.C.Cal.1952.  A statute challenged as repugnant to the due process clause of the fifth amendment must be tested on its face, since it is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression.  U.S.C.A.Const.Amend. 5.  U.S. v. De Cadena, 105 F.Supp. 202.

D.C.Cal. 1951. A statute challenged as repugnant to the due process clause of the fifth amendment must be tested on its face, since it is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. U.S.C.A.Const.Amend. 5.   U.S. v. Spector, 99 F.Supp, 778, reversed 72 S.Ct. 591, 343 U.S. 169, 96 L.Ed. 863, rehearing denied 72 S.Ct 1040, 343 U.S. 951, 96 L.Ed. 1353.

8A Cal D 2d-474.

D.C.Cal. 1951.  Test or reasonableness or unreasonableness or similar tests which can be judged by reference to a common standard of conduct, satisfy due process requirement of definiteness in a statute, and that is especially true in dealing with statutes which seek to control economic activities.  Clayton Act, Sec.Sec. 1, 4, 15 U.S.C.A. Sec.Sec. 12, 15; Robinson-Patman Price Discrimination Act, Sec.Sec. 1-4, 3, 15 U.S.C.A. Sec.Sec. 13-13b, 21a, 13a; U.S.C.A.Const.Amend. 5. F.& A. Ice Cream Co. v. Arden Farms Co., 98 F.Supp. 180.

TRIAL IN GENERAL

8A Cal D 2d-571

U.S.Cal. 1984.  Under due process clause of Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness.  U.S.C.A. Const.Amend. 14.  California v. Tr

C.A.9(Cal. 1987.  District judge may not adopt procedure that impairs defendant's right to due process or his other rights guaranteed by Constitution.   U.S.C.A.Const.Amend. 5.  U.S. v. Thompson, 827 F.2d 1254.

C.A.Cal. 1981.  When conviction is secured by methods that offend elementary standards of justice, defendant may invoke Fourteenth Amendment guarantee of a fundamentally fair trial; this principle is not strictly limited to those situations in which defendant has suffered arguable prejudice, but, rather, principle is designed to maintain also public confidence in the administration of justice.  U.S. v. Taylor, 648 F.2d 565, certiorari denied 102 S.Ct. 329, 454 U.S. 866, 70 L.Ed.2d 168, on remand 527 F.Supp. 863.

C.A.Cal. 1962.  Requirements of Fourteenth Amendment is for a fair trial and the due process clause prohibits conviction and incarceration of one whose trial is offensive to common and fundamental ideas of fairness and right.  U.S.C.A.Const.Amend. 14.  Burbaker v. Dickson, 310 F.2d 30, certiorari denied 83 S.Ct. 1110, 372 U.S. 978, 10 L.Ed.2d 143.

C.A.Cal. 1962.  Contention that trial court occurrence was of such nature as to deprive criminal defendant of due process presents question whether occurrence was of kind which must be presumed to have prejudiced defendant despite instruction and other action to cure error.   Duncan v. Carter, 299 F.2d 179, certiorari denied 82 S.Ct. 1602, 370 U.S. 952, 8 L.Ed.2d 818.

FEDERAL COURT

8A Cal D 2d-572

C.A.Cal. 1960.  It is only where criminal trials in state courts are conducted in such a manner as amounts to a disregard of the fundamental fairness essential to the very concept of justice that due process is offended and federally court interference is warranted.  Chavez v. Dickson, 280 F.2d 727, certiorari denied 81 S.Ct. 379, 364 U.S. 934, 5 L.Ed.2d 366, rehearing denied 81 S.Ct.1092, 366 U.S. 922, 6 L.Ed.2d 244.

8A Cal D 2d-572

Cal. 1985.  Prosecution is obligated to respect defendant's right to a fair trial and an impartial trial in compliance with due process of law.  U.S.C.A.Const.Amends. 6, 14.  People v. Trevino, 704 P.2d 719, 217 Cal.Rptr. 652, 39 C.3d 667.

Cal. 1979.  A trial procedure in which the trier of fact can only find against the accused, even if only advisory, is a blatant violation of constitutional standards; all triers of fact must be free to find for or against the party appearing before them b.  West's Ann.Const. art. 1, Sec. 7(a); art. 6, Sec. 22; U.S.C.A.Const.Amend. 14.   In re Perrone C., 603 P.2d 1300, 160 Cal.Rptr. 704, 26, C.3d 49.

Cal. 1977.  Fair and impartial trial is fundamental aspect of the right of the accused person not to be deprived of liberty without due process of law.  U.S.C.A.Const.Amends. 5, 14; West's Ann.Const. art. 1, Sec. 7(a).   People v. Superior Court of Contra Costa County, 561 P.2d 1164, 137 Cal.Rptr. 476, 19 C.3d 255.

Cal. 1972.  Assurance of fair trial is constitutionally found in due process.   People v. Sharp, 499 P.2d 489, 103 Cal.Rptr. 233, 7 C.3d 488, certiorari denied 93 S.C2. 1380, 410 U.S. 944, 35 L.Ed.2d 610.

Cal. 1960.  Denial of a fair trial and impartial trial amounts to a denial of due process of law and is a miscarriage of justice within meaning of the phrase as used in Constitution.  West's Ann.Const. art, 6, Sec. 4 1/2.  Ex parte Winchester, 348 P.2d 904, 2 Cal.Rptr. 296, 53 C.2d 528, certiorari denied 80 S.Ct. 163 U.S. 852, 4 L.Ed.2d 1734.

Cal.App. 2 Dist. 1984.  Fair hearing is requisite of due process in both civil and criminal cases, and its denial is act in excess of jurisdiction and reversible error per se.  U.S.C.A.Const.Amends. 5, 14.  In re Hector R., 200 Cal.Rptr. 110, 152 C.A.3d 1146.

Cal.App. 1982.  It is obligation of prosecution, as well as of court, to respect mandate that fair and impartial trial is fundamental aspect of right of accused persons not to be deprived of liberty without due process of law.  U.S.C.A.Const.Amend. 14.  People v. Fuller, 186 Cal.Rptr. 283, 136 C.A.3d 403.

Cal.App. 1979.  Right to fair trial is a fundamental liberty secured by Fourteenth Amendment.  U.S.C.A.Const.Amend. 14.  People v. Williams, 155 Cal.Rptr. 414, 93 C.A.3d 40.

Cal.App. 1975.  Persons accused of a crime enjoy the fundamental constitutional right to fair trial under the Sixth and Fourteenth Amendments to the United States Constitution.  U.S.C.A.Const. Amends. 6, 14.  Rosato v. Superior Court of Fresno County, 124 Cal.Rptr. 427, 51 C.A.3d 190, certorari denied 96 S.Ct. 3200, 427 U.S. 912, 49 L.Ed.2d 1204.

Cal.App. 1975.  Duty of a trial court to afford every defendant a fair and impartial trial is of constitutional dimension; where the procedure has fallen short of that standard, an accused has been denied due process and the inherent power of the court to correct matters by granting a new trial transcends statutory limitations.  People v. Oliver, 120 Cal.Rptr. 368, 46 C.A.3d 747.

8A Cal D 2d-573

Cal.App. 1970.  Due process requires that accused receive fair trial by impartial jury, free from outside influences.  People v. Byers, 88 Cal.Rptr. 886, 10 C.A.3d 410.

Cal.App. 1967.  The failure to accord an accused a fair hearing violates even the minimal standards of due process.  Los Angeles County v. Superior Court for Los Angeles County, 62 Cal.Rptr. 435, 253 C.A.2d 670.

  A fair trial in a fair tribunal is a basic requirement of due process.  Los Angeles County v. Superior Court for Los Angeles County, 62 Cal.Rptr. 435, 253 C.A.2d 670.

Cal. App. 1963.  As applied to criminal trial, denial of due process is a failure to observe that fundamental fairness essential to concept of justice, and in order to declare a denial thereof there must be a finding that absence of that fairness fatally infected the trial.  People v. Causey, 34 Cal.Rptr. 43, 220 C.A.2d 641, certiorari denied 84 S.Ct. 981, 376 U.S. 959, 11 L.Ed.2d 976.

Cal.App. 1960. Defendant's rights, which may be waved in criminal case without affecting due process, are: to be brought to trial within 60 days after filing of information; to a public trial; to any trial at all by plea of guilty; to trial by jury; to be confronted with witnesses against him; to defend with counsel; and to be put in jeopardy only once for same offense by failure to raise plea.  People v. Norman, 1 Cal.Rptr. 699, 177 C.A.2d 59, certiorari denied 81 S.Ct. 56, 364 U.S. 820, 5 L.Ed.2d 51.

Cal.App. 1957.  Right of DEFENDANTS to be confronted with witness against him, to be brought to trial within 60 days after filing of information, not to be put in double jeopardy, to public trial, to counsel and to trial by jury, may be waved by defendant without affecting due process in the trial. West's Ann. Pen.COse. Se.Sec. 686, subs. 1, 3, 1043, 1193.  Petition of Spencer, for and on Behalf of Baird, 310 P.2d 454, 150 C.A.2d 561, 68 A.L.R.2d 628.

SHAM TRIALS

8A Cal D 2d-576

Cal.App. 1977.  It is the failure to have an appropriate adjudication of a defense that reduces trial to a farce or a sham, and which thus renders defendant's trial fundamentally unfair, in violation of constitutional due process rights guaranteed to defendant.  U.S.C.A.Const. Amends. 6, 14.  People v. Rodrigez, 141 Cal.Rptr. 118, 73 C.A.3d 1023.

8A Cal. D 2d-577

Cal.App. 1965.  Wrongful interference with defendant in preparing for his defense of criminal prosecution, in opportunity to interview witnesses who have appeared before grand jury in proceedings leading up to return of indictment of defendant, or witnesses whose statements given to the police or district attorney are basis of prosecution actually commenced, is denial of due process and of equal protection of the laws and is violative of the right to have compulsory process for obtaining witnesses; but such unlawful interference is not denial of right to confront and cross

DISCLOSURE AND DISCOVERY; NOTICE OF DEFENSE.

8A Cal D 2d-584

P U.S.Cal. 1984.  Due process clause of the Fourteenth Amendment requires state to disclose to criminal defendant favorable evidence that is material either to guilt or to punishment.  U.S.C.A.Const. Amend. 14.  Califonria v. Trombetta, 104 S.Ct 2528, 467 U.S. 479, 81 L.Ed.2d 413 S.Ct. 2528, 467 U.S. 479, 81 L.Ed.2d 413, on remand People v. Trombetta, 219 Ca.Rptr. 637. 173 C.A.3d 1093, review denied.

8A Cal D 2d-585

C.A.Cal. 1976.  Whether an accused's due process right was violated by prosecutor's failure to disclose evidence is determined by whether undisclosed evidence was so important that its absence prevented accused from receiving his constitutionally guaranteed fair trial.  U.S. v. Cervantes, 542 F.2d 773.

8A Cal D 2d-586

C.A.Cal.197. Prosecution's suppression of requested evidence favorable to accused violates due process where evidence is material either to guilt or punishment irrespective of good faith or bad faith or prosecution.  U.S. v. Baxter, 492 F.2d 150, appeal dismissed 94 S.Ct. 16, 414 U.S. 801, 38 L.Ed.2d 38, certiorari denied 94 S.Ct. 1945, 416 U.S. 940, 40 L.Ed.2d 292.

DEFENDANTS claiming to have been denied due process because of prosecution's suppression of evidence must show that relevant evidence tending to exculpate them has been suressed.  U.S. v. Baxter, 492 F.2d 150, appeal dismissed 94 S.Ct. 16, 414 U.S. 801, 38 L.Ed.2d 38, certiorari denied 94 S.Ct. 1945, 416 U.S. 940, 40 L.Ed.2d 292.

C.A.Cal. 1973.  Whether a defendant's right to due process is violated by failure to disclose exculpatory evidence is determined by whether the undisclosed evidence is so critical that its absence prevents defendant from receiving a fair trial under the Constitution.  U.S. v. Diaz-Rodrigez, 478 F.2d 1005, certiorari denied 93 S.Ct. 3024, 412 U.S. 964, 37 L.Ed.2d 1013.

C.A.Cal. 1972.  Whether accused's right to due process was violated by failure to disclose evidence in determined by whether the undisclosed evidence was so important that its absence prevented the accused from receiving his constitutionally guaranteed fair trial.  U.S. v. Hiber, 463 F.2d 455.

Facts that defense counsel did not specifically request the information that prosecution failed to disclose, or that diligent defense attorney might have discovered information on his own or that the prosecution did not suress the evidence in bad faith were not conclusive; due process could be denied by failure to disclose alone.    U.S. v. Hiber, 463 F.2d 455.

 

8A Cal D 2d-587

C.A.Cal. 1970.  Suppression of evidence favorable to accused violates due process where evidence is material either as to guilt or punishment irrespective of good faith or bad faith of prosecution.  Loraine v. U.S., F.2d 335, certiorari denied 89 S.Ct. 292, 393 U.S. 933, 21 L.Ed.2d 270

Evidence which goes only to credibility of witness may be "material" within rule that suppression of evidence favorable to accused violates due process.  Loraine v. U.S., F.2d 335, certiorari denied 89 S.Ct. 292, 393 U.S. 933, 21 L.Ed.2d 270

C.A. Cal. 1968. Deliberate concealment by government of evidence which might clearly operate in favor of a defendant would constitution a violation of due process, entitling defendant to a new trial.  Lee. v. U.S., 388 F.2d 737.

8A Cal D 2d-589

Cal 1975.  Suppression of substantial material evidence bearing on credibility of a key prosecution witness is a denial of due process, and an accused is entitled to relief in such circumstances unless court can declare a belief that denial was harmless beyond a reasonable doubt.  U.S.C.A.Const.Amend. 14.  People c. Ruthford, 534 P.2d 1341, 121 Cal.Rptr. 261, 14 C.3d 399.

Cal. 1974.  Intentional suppression of material evidence favorable to defendant who has requested it constitutes violation of due process, irrespective of good or bad faith of prosecution.  People v. Hitch. 527 P.2d 361, 117 Cal.Rptr. 9 , 12 C.3d 641.

8A Cal D 2d-591

Cal.A. 4 Dist. 1990.  Intentional or negligent suppression by prosecution of material evidence favorable to accused on issue of guilt violates due process.  U.S.C.A.Const.Amends. 5, 14.  People v. Boyd, 271 Cal.Rptr. 738, 222 C.A.3d 541.

8A Cal D 2d-592

Cal.A.  1982. Intentional suppression of material evidence favorable to defendant, who has requested it, constitutes a violation of due process, irrespective of the good or bad faith or the prosecution.  U.S.C.A. Const.Amends. 5, 14. Peple v. Brown, 188 Cal.Rptr. 324, 138 C.A.3d 832.

8A Cal D 2d-594

Cal.A. 1976.  Due process requires the prosecution to disclose all material evidence favorable to the accused whether such evidence relates directly to the issue of guilt or can lead to defense to favorable evidence.  West's Ann.Evid.Code, Sec.Sec. 140, 600(b).  People v. Vera, 132 Cal.Rptr. 817, 62 C.A.3d 293.

8A Cal D 2d-595

Cal.A. 1972.  Suppression by prosecution of evidence favorable to accused violates due process where evidence is material either to guilt or to punishment, irrespective of good faith or bad faith of prosecution.  People v. McManis, 102 Cal.Rptr. 889, 26 C.A.3d 608.

Cal.A. 1969.  It is always permissible for defendant to show his trial was being unfairly conducted, and by establishing that prosecution is suressing material witness, defendant demonstrates he has been denied fair trial and due process.  People v. Singletary, 81 Cal.Rptr. 79, 276 C.A.2d 601.

8A Cal D 2d-597

LawRev. 1969. Nondisclosure of evidence by the prosecution.  20 Hastings L.J. 974.

LawRev. 1967. Suppression of evidence.  14 U.C.L.A.Law R. 670

268(6) Presence of accused and counsel; public trial and confrontation.

8A Cal D 2d-598

U.S.Cal. 1969.  Confrontation clause of Sixth Amendment is applicable to state trials by reason of due process clause of Fourteenth Amendment.  U.S.C.A.Const.Amends. 6, 14.  Harrington v. California, 89 S.Ct. 1726, 395 U.S. 250, 23 L.Ed.2d 284.

C.A.Cal. 1978.  Confrontation clause of Sixth Amendment is applicable to the states through the Fourteenth Amendment.  U.S.C.A.Const.Amends. 6, 14.  Patterson v. McCarthy, 581 F.2d 220.

C.A.Cal. 1966.  Sixth Amendment right of accused to confront witnesses against him is fundamental right and is made obligatory on states by Fourteenth Amendment, U.S.C.A.Const.Amends. 6, 14.  McGarrity v. Wilson, 368 F.2d 677.

C.A.Cal. 1965.  Right of accused to cross-examine and confront prosecution witnesses in state criminal trial is essential ingredient of fair trial, and as such it is embodied in due process.   U.S.C.A.Const. Amend. 14.  Wilson v. Gray, 345 F.2d 282, certiorari denied 86 S.Ct. 288, 382 U.S. 919, 15 L.Ed.2d 234.

D.C.Cal. 1968.  Sixth Amendment right to confront and cross-examine witness is applicable to states under Fourteenth Amendment.  U.S.C.A.Const.Amends. 6, 14.   Rodrigez v. Nelson, 286 F.Su. 321.

8A Cal D 2d-599

D.C.Cal. 1964.  The right of accused to cross-examine and confront prosecution witnesses in a state criminal trial is guaranteed by the due process clause of the Fourteenth Amendment.  U.S.C.A.Const.Amend. 14.  Gray v. Wilson, 230 F.Su. 860, certiorari denied 85 S.Ct. 693, 379 U.S. 983, 13 L.Ed.2d 573, reversed 345 F.2d 282, certiorari denied 86 S.Ct. 288, 382 U.S. 919, 15 L.Ed.2d 234.

Cal. 1971.  The confrontation clause of the Sixth Amendment is applicable to the states under the Fourteenth Amendment.  U.S.C.A.Const.Amends. 6, 14.  In re Terry, 484 P.2d 1375, 95 Cal.Rptr. 31, 4 C.3d 911, certiorari dismissed 92 S.Ct. 348, 404 U.S. 980, 30 L.Ed.2d 295.

Cal. 1969.  Right of cross-examination secured by confrontation clause of Sixth Amendment is made applicable to states by Fourteenth Amendment.  U.S.C.A.Const.Amends. 6, 14.  People v. Brawley, 461 P.2d 361, 82 Cal.Rptr. 161, 1 C.3d 277, certiorari denied Baker v. California, 91 S.Ct. 462, 400 U.S. 993, 27 L.Ed.2d 441.

Cal. 1967.  Sixth Amendment's guarantee of defendant's right to be confronted with witnesses against him is made applicable to the states by the Fourteenth Amendment, and defendant also has a statutory right to confrontation.  U.S.C.A.Const.Amends. 6, 14.  West's Ann.Pen.Code. Sec. 686.  People v. Foster, 432 P.2d 976, 63 Cal.Rptr. 288, 67 C.2d 604.

Cal. 1959.  It is a denial of due process of law and fundamental fairness for a court to determine issues upon the basis of evidence available to it and the prosecution but not also available to the defendant and his counsel since it is analogous to denying the accused his right to cross-examine or confront witnesses produced against him and in fact is more akin to a procedure whereby a defendant and his counsel would be prevented from even seeing the witnesses or hearing their testimony or examining physical evidence.   People v. Cartier, 335 P.2d 114, 51 C.2d 590.

8A Cal D 2d-600

Cal. A. 1982.  Right to confront and cross-examine witnesses and to call witnesses in one's own behalf are essential to due process.  U.S.C.A.Const.Amends.  6, 14.  People v. Claxton, 181 Cal.Rptr. 281, 129 C.A.3d 638.

8A Cal D 2d-602

Cal.A. 1959.  Privilege of a defendant in a criminal action to confrontation by the witnesses against him in the presence of the court is protected by the due process clause of the federal and state constitutions, and improper denial of the right of cross-examination is a denial of due process.  U.S.C.A.Const.Amend. 14.  People v. Redwine, 333 P.2d 188, 166 C.A.2d 371.

BIAS AND PREJUDICE GENERALLY

8A Cal D 2d-603

Cal.A. 1968.  Due process requires that accused receive a trial by impartial jury free from outside influences.  U.S.C.A.Cosnt. Amend. 14.  People v. McKee, 71 Cal.Rptr. 26, 265 C.A.2d 53.

Cal.A. 1968  Due process requires that an accused receive a fair trial by an impartial jury, free from outside influences.  People v. Richardson, 65 Cal.Rptr. 487, 258 C.A.2d 23.

QUALIFICATIONS, ACTIONS, AND COMMENTS OF JUDGE, JURY, OR PROSECUTOR.

8A Cal D 2d-603

C.A.Cal. 1980.  A hearing by a biased judge does not comport with fundamental concepts of due process of law.  U.S.C.A.Const.Amend. 5.  U.S. v. Navarro-Flores, 628 F.2d 1178.

8A Cal D 2d-604

C.A.Cal. 1957.  When prosecutor in state court is guilty of such unfair, dishonest, or ignoble conduct as to prevent a fair trial for defendant, then defendant has been denied due process called for by the Fourteenth Amendment.  U.S.C.A.Const. Amend. 14.  Burwell v. Teets, 245 F.2d 154, certiorari denied 78 S.Ct. 271, 355 U.S. 896, 2 L.Ed.2d 194 and Rogers v. Teets, 78 S.Ct. 271, 355 U.S. 896, 2 L.Ed.2d 194, rehearing denied 78 S.Ct. 384, 355 U.S. 927, 2 L.Ed.2d 358, rehearing denied 78 S.Ct. 385, 355 U.S. 928, 2 L.Ed.2d 358.

8A Cal D 2d-606

Cal. 1960.  Where prosecution is allowed to control course of proceedings in manner which would prevent accused from presenting material evidence, accused is denied a fair trial and due process.  People v. Kiihoa, 349 P.2d 673, 3 Cal.Rptr. 1, 53 C.2d 748.

8A Cal D 2d-607

Cal.A. 5 Dist. 1984.  Dignitary requirements of procedural due process dictate that not just bias in fact but the appearance of bias and impropriety are due process considerations; goals of the guarantee of due process are the individual's reasonable belief that proceedings are fair and maintenance of confidence in the honesty and integrity of the judge and his proper performance of his judicial function.  West's Ann.Cal. Const. Art. 1, Sec. 15; U.S.C.A.Const. Amends. 5, 14.  People v. Hernandez, 206 Cal.Rptr. 843, 160 C.A.3d 725,

Cal.a. 5 dist 1984.  Procedure outlined in disqualification statute, which permits party who believes he has been aggrieved by decision of aointed judge on issue of disqualification because of that judge's actual bias or prejudice against him to immediately file appellate court petition for writ of mandate, which alleges both facts indicative of actual bias or prejudice against party who sought to disqualify judge and fact indicating that such bias or prejudice operated to deprive litigant of fair hearing, sufficiently comports with due process requirements.  U.S.C.A.Const.Amends. 5, 14; West's Ann.Cal.Const. Art. 1, Sec. 15, cl. 7; West's Ann.Cal.C.C.P. Sec. 170(e).  Garcia v. Superior Court (People), 203 Cal.Rptr. 290, 156 C.A.3d 670.

8A Cal D 2d-609

C.A.Cal. 1981.  A conviction violated Fourteenth Amendment if it is obtained by the use of perjured testimony which prosecution knows to be false or later discovers to be false and allows to go uncorrected. U.S.C.A.Const.Amend. 14.  U.S. v. Taylor, 648 F.2d 565, certiorari denied 102 S.Ct. 329, 454 U.S. 866, 70 L.Ed.2d 168, on remand 527 F.Su. 863.

C.A. Cal. 1978.  Failure of prosecutor to correct testimony of witness known to be false may deny defendant due process and allow reversal of a conviction.  U.S. v. Vargas-Martinez, 569 F.2d 1102.

C.A.Cal. 1965.  Conviction obtained through use of false evidence, known to be such by prosecution, must fall under Fourteenth Amendment to Federal Constitution, and rule allied when prosecution, though not soliciting false evidence, knowingly allows it to go uncorrected when it bears in evidence.  U.S.C.A.Const. Amend. 14.  U.S. v. Marchese, 341 F.2d 782, certiorari denied 86 S.Ct. 41, 382 U.S. 817, 15 L.Ed.2d 64, appeal after remend 378 F.2d 16, certirorari denied 88 S.Ct. 294, 389 U.S. 930, 19 L.Ed.2d 283, rehearing denied 88 S.Ct. 585, 389 U.S. 1025, 19 L.Ed.2d 674.

D.C.Cal. 1969.  Criminal conviction obtained through prosecution's knowing use of perjured or false evidence violates defendant's right to due process.  U.S.C.A.Const. Amend. 14.  Imbler v. Craven, 298 F.Su. 795, affirmed 424 F.2d 631, certiorari denied California v. Imbler, 91 S.Ct. 100, 400 U.S.865, 27 L.Ed.2d 104.

Knowledge by prosecution is required to suort claim of denial of due process base on existend of prejudicial perjured testimony.   Imbler v. Craven, 298 F.Su. 795, affirmed 424 F.2d 631, certiorari denied California v. Imbler, 91 S.Ct. 100, 400 U.S.865, 27 L.Ed.2d 104.

Due process does not tolerate prosecutor's selective inattention to significant facts but requires that he exercise good faith, a requirement not fulfilled where he allows witness to give false testimony of which he has advance knowledge and accuracy of which he has reason to suspect good faith imposes affirmative duty to avoid even unintentional deception and misrepresentation, and prosecutor must undertake careful study of case and exercise diligence in its preparation, particularly where confronted with fact tending to cast doubt upon his witness's testimony.   Imbler v. Craven, 298 F.Su. 795, affirmed 424 F.2d 631, certiorari denied California v. Imbler, 91 S.Ct. 100, 400 U.S.865, 27 L.Ed.2d 104.

HABEAS

8A Cal D 2d-609

Ca. 1963.  A judgment of conviction based on testimony known by representatives of the state to be perjured deprives defendant of due process of law and may be attacked on habeas corpus.  In re Imbler, 387 P.2d 6, 35 Cal.Rptr. 293, 60 C.2d 554, certiorari denied 85 S.Ct. 196, 379 U.S. 908, 13 L.Ed.2d 181.

Cal.A. 1976.  Due process proscribes a criminal conviction obtained through perjured testimony knowingly used by the prosecution against the accused.  Peple v. Westmoreland, 129 Cal.Rptr. 554, 58 C.A.3d 32.

A denial of due process can result if the prosecution, although not soliciting false evidence, allows a misleading and false impression to go uncorrected when it appears; it matters little that the false impression goes only to the credibility of a prosecution witness or that the prosecutor's silence was not the result of guile or a desire to prejudice.   Peple v. Westmoreland, 129 Cal.Rptr. 554, 58 C.A.3d 32.

Cal.A. 1969.  A criminal action presented to a trier of fact on partial evidence which by reason of false inferences created becomes false evidence is an unfair trial which denies accused due process.  People. v. Stuart, 77 Cal.Rptr. 531, 272 C.A.2d 653.

RECEPTION OF EVIDENCE; WITNESSES.

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C.A.Cal. 1965.  Undue infringement of right to cross-examination as well as improper restrictions on right to present evidence in rebuttal is a deprivation of constitutional guaranty of due process of law.  West's Ann.Labor Code, Sec. 5704.  Pence v. Industrial Acc. Commission, 403 P.2d 140, 45 Cal.Rptr. 12, 63 C.2d 48.

8A Cal. D 2d-614

Cal. 1960. Intentional suppression of material evidence by state is a denial of a fair trial and due process, and this can, in some circumstances, be manifested by failure of prosecution to call certain witnesses.  People v. Kiihoa, 349 P.2d 673, 3 Cal.Rptr. 1, 53 C.2d 748.

Cal.A. 2 Dist. 1990. Constitutional guarantee of due process includes right of criminal defendant to compel presence of witness in his behalf.  U.S.C.A.Const.Amend. 14.  People v. Fernandez, 269 Cal.Rptr. 116, 219 C.A.3d 1379, opinion mondified.

8A Cal. D 2d-615

Cal.A. 5 Dist. 1984.  To establish violation of due process rights by prosecutorial intimidation of defense witness, defendant need not establish that prosecutor's remarks were either direct or exclusive factor in witness' decision not to testify; all that need be shown is a strongy suggestion that comments were cause.  U.S.C.A.Const. Amends. 5, 14.  People v. Bryant, 203 Cal.Rptr. 733, 157 C.A.3d 582

Accused's due process right to offer testimony of witness is violated whenever government conduct, whether by state statute, judicial misconduct, or prosecutorial misconduct, interferes with such right.   U.S.C.A.Const. Amends. 5, 14.  People v. Bryant, 203 Cal.Rptr. 733, 157 C.A.3d 582

8A Cal. D 2d-616

Cal.A. 1962.  Right of cross-examination is fundamental to due process of law, and, though scope thereof is limited to testimony received on direct examination, wide latitude is allowed in testing credibility.  West's Ann. Code Civ.Proc. Sec. 2048.  Payette v. Sterle, 21 Cal.Rptr. 22, 202 C.A.2d 372.

Cal.A. 1961. Intentional suppression of material evidence by state would deny accused a fair trial and due process of law.  People v. Blair, 15 Cal.Rptr. 533, 195 C.A.2d 1, certiorari denied 82 S.Ct. 373, 368 U.S. 934, 7 L.Ed.2d 196, certiorari denied 82 S.Ct. 651, 369 U.S. 807, 7 L.Ed.2d 554.

INSTRUCTIONS

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U.S.Cal. 1989.  Due process clause of the Fourteenth Amendment denies states the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offence; jury instructions relieving states of this burden violate a defendant's cue process rights.  U.S.C.A.Const.Amend. 14.  Carella v. California, 109 S.Ct. 2419, 105 L.Ed.2d 218, rehearing denied 110 S.Ct. 23, 106 L.Ed.2d 636.

8A Cal. D 2d-621

Cal. 1984.  Failure to instruct on intent as element of special circumstance, because it takes issue of intent from trier of fact, denies defendant due process of law in violation of Fourteenth Amendment.  U.S.C.A.Const. Amend. 14.  People v. Garcia, 684 P.2d 826, 205 CalRptr. 265, 36 C.3d 539, certiorari denied California v. Garcia, 105 S.Ct. 1229, 469 U.S. 1229, 84 L.Ed.2d 366.

Cal. 1973.  Due process clause of Fourteenth Amendment of Federal Constitution protects accused against conviction except upon proof beyond a reasonable doubt; an erroneous instruction to jury which in effect reverses this burden of proof is therefore an infringement of defendant's constitutional right to due process, and such an error is not necessarily cured by instructions which state the rules correctly.  U.S.C.A.Const.Amend. 14.  People v. Serrato, 512 P.2d 289, 109 Cal.Rptr. 65, 9 C.3d 753.

8A Cal. D 2d-623

Cal.A. 3 Dist. 1983.  Jury instruction which has effect of reversing or lightening State's burden of proof constitutes infringement of defendant's constitutional right to due process.  U.S.C.A.Const.Amend. 14.  People v. Deletto, 195 Cal.Rptr. 233, 147 C.A.3d 458, certiorari denied Deletto v. California, 104 S.Ct. 2156, 466 U.S.952, 80 L.Ed 542.

Cal.A. 4 Dist. 1988. Trial court's failure to sua sponte instruct jury on element of specific intent needed to convict defendant of felony for willfully failing to aear, after being released on bail, as required, in order to evade process of court, denied defendant due process.  U.S.C.A.Const.Amends. 5, 14; West's Ann.Cal.Penal Code Sec. 1320.5.  People v. Wesley, 243 Cal.Rptr. 785, 198 C.A.3d 519.

Cal.A. 1982.  Testimony as to prior inconsistent statements of material witness for prosecution is relevant testimony tending in reason to disprove disputed fact of defendant's guilt and is admissible when otherwise not barred by law, and right to produce legally admissible relevant evidence in defense is basic ingredient of due process of law, and defendant was denied such right when defense counsel was not allowed to give testimony tending to impeach testimony of prosecution witness, defense counsel having been previously denied permission to withdraw on ground that he was prospective witness.  West's Ann.Evid.Code Sec.Sec. 210, 351; U.S.C.A.Const.Amends. 5, 14.  People v. Goldstein, 182 Cal.Reptr. 207, 130 C.A.3d 1024.

Cal.A. 1982.  Right to confront and cross-examine witnesses and to call witnesses in one's own behalf are essential to due process.  U.S.C.A.Const.Amends. 6, 14.  People v. Claxton, 181 Cal.Rptr. 281, 129 C.A.3d 638.

Cal.A. 1971.  Failure to instruct, in prosecution for felony battery upon a police officer, as to reasonable doubt and presumption of innocence after representation that such an instruction would be given at appropriate time was additional factor to be considered in assessing overall compliance with requirements of due process.  West's Ann.Pen. Code Sec.Sec. 242, 243, 1093, subd. 6.   People v. Townsend, 98 Cal.Rptr. 25, 20 C.A.3d 688.

ASSISTANCE OF COUNSEL

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268.1(1) In general.

U.S.Cal. 1975.  Sixth and Fourteenth Amendments of Federal Constitution guarantee that person brought to trial in any state of federal court be afforded right to assistance of counsel before he can be validly convicted and punished by imprisonment.  U.S.C.A.Const.Amends. 6, 14.  Faretta v. California, 95 S.Ct. 2525, 422 U.S. 806, 45 L.Ed.2d 562.

Sixth Amendment rights of accused in all criminal prosecutions to be informed of nature and cause of accusation, to be confronted with witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have assistance of counsel for his defense are part of the "due process of law" that is guaranteed by Fourteenth Amendment to DEFENDANTS in the criminal courts of state.  U.S.C.A.Const.Amends. 6, 14.  Faretta v. California, 95 S.Ct. 2525, 422 U.S. 806, 45 L.Ed.2d 562.

U.S.Cal. 1967.  Sixth Amendment's requirement that accused have right to assistance of counsel was made obligatory on states by Fourteenth Amendment.  U.S.C.A.Const.Amends. 6, 140.  Anderes v. State of Cal., 87 S.Ct. 1396, 386 U.S. 738, 18 L.Ed.2d 493, rehearing denied 87 S.Ct. 2094, 388 U.S. 924, 18 L.Ed.2d 1377.

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Cal. 1985.  Failure to respect accused's right to retain counsel of his own choosing as well as to give retained counsel a reasonable time in which to prepare a defense constitutes a denial of due process.  U.S.C.A.Const.Amends. 6, 14.  People v. Coutrs, 693 P.2d 778, 210 Cal.Rptr. 193, 37 C.3d 784.

Cal.1979.  Due process guarantee that persons forced to settle their claims of right and duty through the judicial process be given a meaningful opportunity to be heard includes the right to a defendant to aointed counsel under certain circumstances regardless of whether the action is labeled criminal or civil. U.S.C.A.Const.Amend. 14; West's Ann.Const. art 1, Sec. 7(a).  Salas v. Cortez, 593 P.2d 226, 154 Cal.Rptr. 529, 24 C.3d 22, certiorari denied 100 S.Ct. 209, 444 U.S. 900, 62 L.Ed.2d 136.

Cal.A. 1976.  Due process is no yardstick of definite vlaue, but rather is embodiment of traditional notions of fair play and justice; it is clearly violated when defendant is denied counsel in criminal proceedings, but may also be denied under circumstances which do not include outright refusal to provide counsel.  People v. Moore, 129 Cal.Rptr. 279, 57 C.A.3d 437.

Cal.A. 1966. If defendant in criminal case has been deprived of procedural due process because deprived of services of counsel, due process is not satisfied if defendant is penalized because he does not in some manner and from some source seasonably ascertain nuances of the law so as to make timely alication for relief.  People v. Campbell, 48 Cal.Rptr. 603, 239 C.A.2d 252.

Cal.A. 1963.  If defendant is so prejudiced by denial of counsel as to infect his subsequent trial with absence of that fundamental fairness essential to very concept of justice, he has been denied due process of law.  People v. Sigal, 34 Cal.Rptr. 767, 221 A.A.2d 684.

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Cal.A. 1960.  Defendant whose attorney was relieved by court without any notice to defendant was deprived of due process of law.  West's Ann.Code.Civ.Proc.  Sec. Sec. 284, 285; U.S.C.A.Const.Amend. 14.  People v. Kerfoot, 7 Cal.Rptr. 674, 184 C.A.2d 622.

Cal.A. 1953.  Denying the right to counsel in criminal proceedings is denial of due process.  People v. Mora, 262 P.2d 594, 120 C.A.2d 896.

LawRev 1975.  The right to effective counsel in criminal trials: Judicial standards and the California Bar Association Response.  5 Golden Gate L.Rev. 499.

LawRev. 1973.  Right to self representation.  10 C.W.L.R. 196.

LawRev.  1972.  Legal aid.  James Gordley.  24 Stan.L.R. 387.

LawRev. 1967.  The new definition: A Fifth Amendment right to counsel.  14 U.C.L.A.Law R. 604.

LawRev. 1967.  Fifth Amendment right to counsel in federal income tax investigations.  19 Stan.L.R. 1014.

LawRev. 1964.  Safeguarding economic liberties. S. John Insalata.  50 A.B.A.J. 1144.

LawRev.  The right to counsel in California.  5 Santa Clara L. 75.

Lawrev. 1960.  The right to counsel in misdemeanor cases.  48 C.L.R. 501.

LawRev. 1951.  Prohibiting communications by defendant with counsel during recess of court as deprivation of constitutional right to assistance of counsel.  24 So.Cal.L.R. 105.

NECESSITY IN GENERAL.

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Cal.A. 1965.  Due process clause of Fourteenth Amendment includes Sixth Amendment guarantee to right to counsel. U.S.C.A.Const.Amends. 6, 14.  People v. Ferry, 47 Cal.Rptr. 324, 237 C.A.2d 880.

Cal.A.1964.  Right to counsel guaranteed by Sixth Amendment is applicable in criminal trials in state courts.  U.S.C.A.Const.Amend. 6.  People v. Phillips, 40 Cal.Rptr. 403, 229 C.A.2d 496.

A denial of right to counsel is a denial of due process and furnishes basis for ruling that defendant has not been legally committed.   People v. Phillips, 40 Cal.Rptr. 403, 229 C.A.2d 496.

8A Cal D 2d-627

D.C.Cal. 1964. Where substantial issues of fact will be presented in proceeding to vacate and set aside sentence, court is duty bound to appoint counsel to represent petitioner and that duty arises not out of Sixth Amendment but out of due process clause of Fifth Amendment.  28 U.S.C.A. Sec. 2255; U.S.C.A.Const. Amends. 5, 6.  Henderson v. U.S., 231 F.Su. 177.

LawRev. 1969.  The right to counsel-in-custody interrogation.  20 Hastings L.J. 958.

LawRev. 1966.  The right to have assistance of counsel at all appellate stages.  52 A.B.A.J. 135.

268.1(5) Choice of counsel; necessity of request and waver.

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Cal.A. 1982.  United States Constitution does not permit state to force attorney on unwilling criminal defendant, because to do so is contrary to his basic right to represent himself if he truly wants to do so.  U.S.C.A.Const.Amends. 6, 14.  In re Gary U., 186 Cal.Rptr. 316, 136 C.A.3d 494.

ADEQUACY AND EFFECTIVENESS OF REPRESENTATION.

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U.S.Cal. 1967.  Constitutional requirements of substantial equality and fair process can only be attained where counsel acts in role of active advocate in behalf of client, as opposed to that of amicus curae.  U.S.C.A.Const.Amends. 6, 14.  Anders v. State of Cal., 87 S.Ct. 1396, 386 U.S. 738, 18 L.Ed.2d 493, rehearing denied 87 S.Ct. 2094, 388 U.S. 924, 18 L.Ed.2d 1377.

C.A.Cal. 1980.  Government interference with defendant's relationship with his attorney may render counsel's assistance so ineffective as to violate his Sixth Amendment right to counsel as his Fifth Amendment right to due process  U.S.C.A.Cosnt. Amends. 5, 6.  U.S. v. Irwin, 612 F.2d 1182.

C.A.Cal. 1974.  Counsel for defendant convicted of crime in a state court has a affirmative duty to protect his client's right of appeal by filing a notice of appeal for his client or by telling him how he can proceed on his own behalf, and failure to provide the obligation deprives defendant of effective assistance of trial counsel when the lawyer knows that his indigent client may want to appeal and that his client does not know how to do so.  Riser v. Crave, 501 F.2d 381.

C.A.Cal. 1972.  To sustained contention that criminal defendant was denied due process because representation furnished by attorney was inadequate and ineffective, inadequacy must have been such that trial was a farce or mockery of justice or so ineffective as to shock the conscience of the court.  U.S. v. Steed, 465 F.2d 1310, certiorari denied 93 S.Ct. 697, 409 U.S. 1078, 34 L.Ed.2d 667.

C.A.Cal. 1971.  Assistance of counsel required by Sixth and Fourteenth Amendments must be effective assistance.  U.S.C.A.Const.Amends. 6, 14.  Barber v. Nelson, 451 F.2d 1017.

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D.C.Cal. 1964. Assistance of counsel, whether demanded by Fifth or Sixth Amendment, must be effective assistance.  U.S.C.A.Const.Amends. 5, 6.  Hendeerson v. U.S., 231 F.Su. 177.

8A Cal D 2d-634

Ca. 1970.  Constitutional right to assistance of counsel in a criminal case includes guarantee that such assistance is effective, and effective counsel required by due process is counsel reasonably likely to render and rendering reasonably effective assistance.   U.S.C.A.Const.Amend. 6.   In re Saunders, 472 P.2d 921, 88 Cal.Rptr. 633, 2 C.3d 1033.

Cal. 1959.  Where federal due process requires appointment of counsel, the states court's appointment of counsel, the state court's aointment must be effective; it must afford counsel time and oortunity, and impose upon him the duty, to consult with defendant and investigate and prepare the case for trial.  U.S.C.A..Const. Amend. 6.  People v. Mattson, 366 P.2d 937, 51 C.2d 777.

8A Cal D 2d-635

Cal.A. 1973. Determination of whether the demands of due process have been met in a particular case with respect to assistance of counsel is always a question of judgment and degree to be answered in light of all the circumstances with a view to fundamental fairness; generally, the standards employed pose a question of whether counsel's representation reduced the trial to a farce or a sham.  People v. Strawder, 108 Cal.Rptr. 901, 34 C.A.3d 370.

8A Cal D 2d-636

Cal.A. 1970.  Inexcusable failure of defense counsel to discharge his duty to carefully investigate all defenses of fact and law that may be available to defendant constitutes a denial of effective assistance of counsel equating a denial of his constitutional right to counsel and also constitutes denial of a fair trial equating denial of due process.  People v. Dobson, 91 Cal.Rptr. 433, 12 C.A.3d 1177.

Cal.A. 1966.  Federal due process requires reversal of conviction which is "fundamentally unfair" for lack of effective aid of counsel.  People v. Goldman, 53 Cal.Rptr. 810, 245 C.A.2d 376.

Cal.A. 1962.  Defendant complaining that inadequacy of representation denied him due process must show that counsel displayed such lack of diligence and competence as to reduce trial to farce or sham.  U.S.C.A.Const.Amend. 14.  People v. Lyons, 22 Cal.Rptr. 327, 204 C.A.2d 364.

8A Cal D 2d-637

Cal.A. 1958.  To violate guarantee of Fourteenth Amendment, representation by counsel must be of such a low order as to render trial a farce and a mockery of justice, or it must be shown that essential integrity of proceeding as a trial was destroyed by incompetence of counsel. U.S.C.A.Const.Amend. 14.  People v. Dupree, 319 P.2d 39, 156 C.A.2d 60.

Cal.A. 1954.  Record failed to sustain defendant's contention that he was denied due process by failure of his attorneys to fight for his rights and by their claimed conspiracy with the prosecution.  People v. Meehan, 269 P.2d 70, 124 C.A.2d 589, certiorari denied 75 S.Ct. 67, 348 U.S. 845, 99 L.Ed. 666, certiorari denied 75 S.Ct. 662, 349 U.S. 922, 99 L.Ed. 1254.

LawRev. 1969.  Defendant's right to relief where he received incompetent defense could not depend upon whether counsel was assigned or retained.  55 A.B.A.J. 254.

LawRev. 1967. Counsel.Standards to guarantee effective assistance.  8 Santa Clara L. 108.

LawRev.  1957.  Incompetence of counsel as a ground for attacking criminal convictions in California and federal courts.  4 U.C.L.A.Law Rev. 400.

8A Cal D 2d-642

Cal.A.  1966. Fourteenth Amendment makes Sixth Amendment guarantee of counsel obligatory on states, requiring publicly sulied legal representation for indigent felony DEFENDANTS.  U.S.C.A.Const.Amends. 6, 14.  In re Van Brunt, 51 Cal.Rptr. 136, 242 C.A.2d 96.

8A Cal D 2d-643

C.A.9(cal.) 1987.  Petitioner had protected liberty interest against excessive punishment and a liberty interest in the correct sentence of eight months for state offense of escape from local custody and thus it was due process violation for state court to order petitioner to a full two-year term. West's Ann.Cal.Penal Code Sec. 209(a); U.S.C.A.Cosnt.Amend. 14.  Wasko v. Vasquez, 820 F.2d 1090.

MATTERS CONSIDERED; PRESENTENCE REPORT.

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C.A.9(Cal.) 1986.  Defendant's due process rights are violated when a trial judge relies on materially false or unreliable information in sentencing.  U.S. v. Hull, 792 F.2d 941.

C.A.Cal. 1983.  When trial judge relies on materially false or unreliable information in sentencing defendant, defendant's due process rights are violated. U.S.C.A.Const.Amends. 5, 14.  U.S. v. Ruster, 712 F.2d 409.

C.A.Cal. 1982.  Due process requirements that sentencing judge listen to and fairly consider information material to mitigation of punishment.  U.S.C.A.Cosnt.Amend. 5.  U.S. v. Coletta, 682 F.2d 820, centiorari denied 103 S.Ct. 1187, 459 U.S. 1202, 75 L.Ed.2d 433.

8A Cal D 2d-653

C.A.Cal. 1979. Due process is violated whenever a defendant is sentenced on the basis of information that is materially false or unreliable. U.S.C.A.Const.Amends. 5, 14.  U.S. v. Lasky, 592 F.2d 560.

DISCRIMINATION AND VINDICTIVENESS; SENTENCE ON RETRIAL.

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C.A.Cal. 1975.  Due process requires that corrective resentencing be free of vindictiveness, pique or the appearance thereof.  U.S. v. Kenyon, 519 F.2d 1229, certiorari denied 96 S.Ct. 293, 423 U.S. 935, 46 L.ed.2d 267.

Cal.A. 1981.  Due process mandates that defendant not be shackled with fear of retaliation by sentencing judge.  U.S.C.A.Const.Amends. 5, 14; West's Ann.Const.Art. 1, Sec.Sec. 7, 15.  People v. Rivera, 179 Cal.Rptr. 384, 127 C.A.3d 136, certiorari denied Rivera v. California, 102 S.Ct. 2942, 457 U.S. 1123, 73 L.Ed.2d 1338.

8A Cal D 2d-662

Cal. 1976.  A defendant is not afforded procedural due process protections in probation hearings when procedures employed are "fundamentally unfair" to him.  West's Ann.Pen.Code, Sec. 1203(a).  People v. Edwards. 557 P.2d 995, 135 Cal.Rptr. 411, 18 C.3d 796.

Cal. 1972.  The rule that there is not right to notice and hearing preceding revocation of probation is no longer consistent with the state constitutional requirements of due process. West's Ann.Const. art. 1, Sec. 13.  People v. Vickers, 503 P.2d 1313, 105 Cal.Rptr. 305, 8 C.3d 451.

8A Cal D 2d-663

Cal.A. 1 Dist. 1988. Principles of due process apply to probation revocation proceedings, requiring trial court to provide sufficient reasons for its order.  U.S.C.A.Const.Amends. 5, 14.  People v. Latham, 253 Cal.Rptr. 379, 206 C.A.3d 27.

Cal.A. 2 Dist. 1985.  It is an essential component of due process that individual be given fair notice of those acts which may lead to loss of liberty whether loss of liberty arises from criminal conviction or revocation of probation.  U.S.C.A.Const.Amend. 14.  In re Robert M., 209 Cal.Rptr. 657, 163 C.A.3d 812.

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Cal.A. 1977.  Actual revocation of probation cannot occur until probationer has been afforded due process hearing rights.  People v. Barkins, 145 Cal.Rptr. 926, 81 C.A.3d 30.

8A Cal D 2d-669

Cal.A. 1953.  As part of the protection afforded by the due process clause of the Fourteenth Amendment to the Federal Constitution, there must be available an effective judicial corrective process to enable a convicted person, even after appeal and affirmance of a judgment of conviction, to establish that in truth the judgment was procured under circumstances which offend the fundamental concepts of justice  U.S.C.A.Const.Amend. 14; West's Ann.PenCode. Sec. 1265.  People v. Sica, 253 P.2d 75, 166 C.A.2d 59, certiorari denied 74 S.Ct. 36, 346 U.S. 831, 98 L.Ed. 354.

Provisions of Penal Code requiring that after a judgment has been affirmed on aeal, a proceeding in the nature of error coram nobis to vacate judgment shall be addressed to court which affirmed judgment, and that when a hearing is not granted by the supreme court, the alication for writ shall be made to the District Court of Aeal, as is not violative of the Fourteenth Amendment to the Federal Constitution.  U.S.C.A.Const.Amend. 14; West's Ann.PenCode. Sec. 1265.  People v. Sica, 253 P.2d 75, 166 C.A.2d 59, certiorari denied 74 S.Ct. 36, 346 U.S. 831, 98 L.Ed. 354.

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C.A.Cal. 1966.   When efforts of a state prisoner to obtain an available state appellate review of his convictions are frustrated by actions of penal officials, there has been a violation of due process clause of Fourteenth Amendment.  U.S.C.A.Const. Amend. 14.  DeWitt v. Pail, 366 F.2d 682.

8A Cal D 2d-671

D.C.Cal. 1958.  An action in forma paupris is entirely statutory and is a privilege and not a right and involves no requirement as to due process.  Hodge v. Heinze, 165 F.Su. 726, certificate denied Alication of Hodge, 262 F.2d 778.

Cal. 1990.  Delay attributable to appeals should be considered potentially prejudicial to defendant for due process purposes, only when it occurs after issuance of remitter by appellate court.  U.S.C.A.Const.Amends. 5, 14.  People v. Mattson, 789 P.2d 983, 268 Cal.Rptr. 802, 50 C.3d 826, rehearing denied.

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Cal.A. 1981.  Foreclosure of meritorious appellate review in criminal cases offends basic notions of justice and due process of law.  West's Ann.Const.art. 1, Sec.Sec. 7, 15; U.S.C.A.Const.Amends, 5, 14.  People v. Rivera, 179 Cal.Rptr. 384, 127 C.A.3d 136, certiorari denied Rivera v. California, 102 S.Ct. 2942, 457 U.S. 1123, 73 L.Ed.2d 1338.

Cal.A.  1976.  Once appellate review is established, it must be kept free from any procedures which violate due process of equal protection of law.  U.S.C.A.Const.Amend. 14. In re Walker, 128 Cal.Rptr. 291, 56 C.A.3d 225.

Cal.A. 1973.  Due process required that any issues which are arguable on appeal in a criminal case must be argued, whether or not the record contains grounds for reversal.  People v. Scobie, 111 Cal.Rptr. 600, 36 C.A.3d 97.

8A Cal D 2d-673

LawRev. 1965.  Right to free transcript.  17 Hastings L.J. 113.

LawRev. 1964.  The lawyers and the ware against poverty.  Ronald L. Goldfarb.  50 A.B.A.J. 1152.

LawRev. 1964.  Safeguarding economic liberties. S. John Insalata.  50 A.B.A.J. 1144.

LawRev. 1960.  Denial of indigent prisoner's request for transcript as not entitling him to be released from custody.  11 Hastings L.J. 226.

LawRev. 1957.  Due process of law - equal to protection of the laws - right of indigent DEFENDANTS convicted of non-capital offenses to free transcripts.  30 S.Cal.L.R. 350.

LawRev. 1957.  Due process and equal protection; right of an indigent defendant to a transcript of the trial.  4 U.C.L.A. Law Rev. 274.

EXECUTION OF SENTENCE.

LawRev. 1977. Due process argument for an explanation of sentence.  25 U.C.L.A.Law Rev. 344.

LawRev. 1977.  Requirements of procedural due process.  10 Loyola U.(L.A.)L.Rev. 731.

LawRev. 1972.  The status of a prisoner's sentence as substantial personal interest to be protected by procedural due process.  8 C.W.L.R. 516.

LawRev. 1967.  Prisoner assistance on federal habeas corpus petitions.  19 Stan.L.R. 887.

IMPRISONMENT AND INCIDENTS THERE OF.

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      The constitutional guarantee of due process of law has a corollary the requirement that prisoners be afforded access to the courts in order to seek redress for violations of their constitutional rights; inmates must have reasonable opportunity to seek and receive the assistance of attorneys and regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid.  U.S.C.A.Const.Amend. 14.  Procunier v. Martinez, 94 S.Ct. 1800, 416 U.S. 396, 40 L.Ed.2d 224.

C.A.9(Cal.).  1990.  DEFENDANTS due process rights at sentencing include right not to have his sentence based on materially false information.  U.S.C.A.Const.Amend. 5; U.S.S.G. Sec. 6A1.3(a), p.s., 18 U.S.C.A.A.  U.S. V. Wilson, 900 F.2d 1350.

PARDON AND PAROLE.

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D.C.Cal. 1975.  Fixing of parole release date affords prisoner substantial interest that may not thereafter be withdrawn except upon minimum procedures appropriate under circumstances and required by due process clause.  42 U.S.C.A.Sec. 1983; U.S.C.A.Const.Amend. 14.  Jackson v. Wise, 390 F.Su. 19.

      Due process requirements for recession or modification of parole release date are less than those applicable to revocation of probation but nevertheless include (1) advance written notice of charge, (2) written statement by fact-finders of evidence relied on and reasons for their decision, (3) right of prisoner to be present, (4) right of prisoner to present witnesses and documentary evidence on his behalf, if so doing would not be unduly hazardous to institutional safety or correctional goals, (5) right, if prisoner is found illiterate or other wise incompetent to protect his own interests, to have attorney substitute, and (6) adjudication of charges by panel sufficiently impartial to satisfy due process requirements.  U.S.C.A.Const.Amend. 14.  Jackson v. Wise, 390 F.Su. 19.

FAIR JUDGE

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U.S.Cal. 1982.  Due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities.   U.S.C.A. Const.Amend. 5.  Schweiker v. McClure, 102 S.Ct. 1665, 456 U.S. 188, 72 L.Ed.2d 1.

C.A.9 (Cal.) 1986.  Due process clause guarantees aggrieved party opportunity to present case and have its merits fairly judged.  U.S.C.A. Const.Amend. 14.  Jackson Water Works, Inc. v. Public Utilities Com'n of State of Cal., 793 F.2d 1090, certiorari denied 107 S.Ct. 1334, 479 U.S. 1102, 94 L.E.2d 184.

Under due process clause, every party is entitled to impartial tribunal.  Jackson Water Works, Inc. v. Public Utilities Com'n of State of Cal., 793 F.2d 1090, certiorari denied 107 S.Ct. 1334, 479 U.S. 1102, 94 L.E.2d 184.

C.A.Cal 1967.  Due process is denied where the procedure tends to shock the sense of fair play.  U.S.C.A.Const.Amend. 5.  Howard v. U.S., 375 F.2d 294, certiorari denied 87 S.Ct. 2129, 388 U.S. 915, 18 L.Ed.2d 1365.

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D.D.Cal 1975.  At heart of any due process hearing is requirement of an impartial decision maker.  U.S.C.A.Const.Amend 5.  Ponce v Housing Authority of Tulare County, 389 F.Su. 635.

D.C.Cal. 1971.  Procedural due process must obtain whenever individual is subject to "grievous loss" at hands of state or its instrumentalities.  42 U.S.C.A. Sec. 1983; U.S.C.A.Const.Amend. 14.  Clutchette v. Procunier, 328 F.Su. 767, modified, cause remanded 497 F.2d 809, modified 510 F.2d 613, certiorari granted Enomoto v. Clutchette, 95 S.Ct. 2414, 421 U.S. 101, 44 L.Ed.2d 810, vacated, on remand 536 F.2d 305, on remand 471 F.Su 1113.

Rudimentary principles of due process require presence of counsel when rights of individual are seriously threatened by governmental action.  U.S.C.A.Const.Amends. 6, 14. Clutchette v. Procunier, 328 F.Su. 767, modified, cause remanded 497 F.2d 809, modified 510 F.2d 613, certiorari granted Enomoto v. Clutchette, 95 S.Ct. 2414, 421 U.S. 101, 44 L.Ed.2d 810, vacated, on remand 536 F.2d 305, on remand 471 F.Su 1113.

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Cal.Ap. 1982.  Fundamental fairness, i.e. due process, includes right to present legal and factual issues in deliberate and orderly manner.  U.S.C.A.Const.Amend. 14.  White v. Division of Medical Quality, Bd. of Medical Quality Assur., 180 Cal.Rptr. 516, 128 C.A.3d 699.

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Cal.A. 1974.  Procedural due process requires that the property of a deprivation of substantial right to be resolved in a manner consisted with essential fairness.  Ursino v. Superior Court, In and For City and County of San Francisco, 114 Cal.Rptr. 404, 39 C.A.3d 611.

Cal.A.  1966.  The essentials of due process are regular and orderly procedure in court of competent jurisdiction, notice to defendant, opportunity for defendant to be heard, and fair hearing.  State Acting By and Through Dept. of Water Resources v. Natomas Co., 49 Cal.Rptr 64, 239 C.A.2d 547.

Cal.A.  1962.  Due process requires fair trial before impartial tribunal, and such trial requires that person or body who decides cases must known, consider, and appraise evidence.  Le Strange v. City of Berkley, 26 Cal.Rptr. 550, 210 C.A.2d 313.

Cal.A. 1859.  There are two essentials to due process in a judicial proceeding: (1) that the court have jurisdiction over the parties and the subject matter of the action, and (2) that the parties have reasonable notice and an opportunity for hearing.  West's Ann.Const.art. 1, Sec.Sec. 2, 13.  Datta v. Staab, 343 P.2d 977, 173 C.A.2d 613.

Law Rev 1977.  Standards of judicial review.  50 So.Cal.L.R. 689.

NOTICE AND HEARING

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C.A.9 (Cal) 1985.  If individual bringing procedural due process challenge demonstrates likelihood of irreparable harm, resulting from lack of predeprivation hearing, it is unlikely that government will be able to demonstrate any public interest that will overcome individual's interest, and some additional form of predeprivation process will probably be require; in absence of such showing, however, courts must balance governmental interests in retaining existing process against private interest that will effect and probability of erroneous deprivation associated with that process.  U.S.C.A. Const.Amends. 5, 14.  Jolly v. U.S. 764 F.2d 642.

C.A.Cal 1983.  Central meaning of procedural due process is that parties whose rights are to be affected are entitled to be heard at a meaningful time and in a meaningful manner.  U.S.C.A. Const.Amends. 5, 14.  Orloff v. Cleland, 708 F.2d 372.

C.A.Cal 1985.  Fundamental requirements of due process is the opportunity to be heard at a meaningful time and in a meaningful manner in terms of the threatened conduct, U.S.C.A. Const.Amend. 5.  Sieffa Club v. Watt, 608 F.Su. 305.

D.D.Cal 1984.  Opportunity to be heard guaranteed by due process is opportunity which must be granted at meaningful time and in meaningful manner.  U.S.C.A. Const.Amend. 14.  Aminoil, Inc. v. U.S. E.P.A. 599 F.Su. 69.

D.C.Cal. 1980.  In order to satisfy fair hearing requirement of due process clause, a tribunal, whether administrative or judicial, must be impartial; adjudicator may neither have pecuniary interest in outcome nor have been target of personal abuse or criticism from party before him.  U.S.C.A.Const Amend. 14.  McClure v. Harris, 503

D.C.Cal. 1970.  The due process right to predetermination hearing, with right to confront and question witnesses, is the constitutional norm and not the exception when government action seriously injures an individual and the crucial decision is based upon facts alleged by a third party.  Crow v. California Dept. of Human Resources, 325 F.Su. 1314, certiorari denied 92 S.Ct. 2495, 408 U.S. 924, 33 L.Ed.2d 335, revised 490 F.2d 580, vacated 95 S.Ct. 1110, 420 U.S. 917, 43 L.Ed.2d 388.

Cal. 1985.  Fundamental fairness includes both right to adequate notice and right to defend against charged violations.  Harry Carian Sales v. Agricultural Labor Relations Bd.  (United Farm Workers of America, AFL-CIO), 703 P.2d 27, 216 Cal.Rptr. 688, 39 C.3d 209.

Cal. 1982.  Rudiments of fair play include notice, opportunity to respond, and a hearing.  West's Ann.Const.Art. 1, Sec. 7; U.S.C.A.Const.Amend, 14.  In re Marriage of Flaherty, 646 P.2d 179, 183 Cal.Rptr. 508, 31 C.3d 637.

Cal. 1979.  Where prior notice of potentially adverse decision is constitutionally required, such notice must, at minimum, be reasonably calculated to afford affected persons realistic opportunity to protect their interests.  U.S.C.A.Const.Amend 14.  Horn v. Ventura County, 596 P.2d 1134, 156 Cal.Rptr. 718, 24 C.3d 605.

Cal. 1975.  Fundamental requisite of due process is the meaningful opportunity to be heard and to explain one's actions.  People v. Coleman, 533 P.2d 1024, 120 Cal.Rptr. 384, 13 C.3d 867.

Cal. 1968.  Since right to hearing is one of rudiments of fair play assured by Fourteenth Amendment, there can be no compromise on footing of convenience or expediency when that minimal requirement has been neglected or ignored.  U.S.C.A.Const.Amend. 14.  Endler v. Schutzbank, 436, P.2d 297, 65 Cal.Rptr. 297, 68 C.2d 162.

Cal.A.2Dist. 1989.  Due process requires notice and opportunity for a hearing before an impartial tribunal.  U.S.C.A. Const.Amend. 14; West's Ann.Cal. Const.Art. 1, Sec. 7, 15.  Bennett v. Bodily, 259 Cal.Rptr. 199, 211 C.A.3d 133, review denied.

SPEEDY HEARING RIGHT

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C.A.Cal 1983.  Central meaning of procedural due process is that parties whose rights are to be affected are entitled to be heard at a meaningful time and in a meaningful manner.  U.S.C.A. Const.Amends. 5, 14.  Orloff v. Cleland, 708 F.2d 372.

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Cal.A. 2 Dist.  1987.  A fundamental requisite of due process is the opportunity to be heard at a meaningful time and a meaningful manner.  U.S.C.A. Const.Amend. 14.  Cordova v. Vons Grocery Co., 242 Cal.Rptr. 605, 196 C.A.3d 1526.

384, 13 C.3d 867.  Cal. 1968.  Since right to hearing is one of rudiments of fair play assured by Fourteenth Amendment, there can be no compromise on footing of convenience or expediency when that minimal requirement has been neglected or ignored.  U.S.C.A.Const.Amend. 14.  Endler v. Schutzbank, 436, P.2d 297, 65 Cal.Rptr. 297, 68 C.2d 162.

103 S.Ct. 1497, 460 U.S. 1051, 75 L.Ed.2d 929.

Cal.A. 1981. One aspect of the procedural protection of due process is the opportunity to be heard within a reasonably prompt period of time. U.S.C.A. Const.Amend. 14. Garcia v. Los Angeles County Bd. of Ed., 177 Cal.Rptr. 29, 123 C.A.3d 807.

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Cal.A. 1954.  Under constitutional guaranties, no right of an individual, valuable to him pecunirily or otherwise, can be justly taken away without its being done conformably to principle of justice which afford due process of law unless the law constitutionally otherwise provides, and due process of law does not mean according to the whim, caprice, or will of the judge but according to the law.  In re Buchman's Estate, 267 P.2d 73, 123 C.A.2d 546, 47 A.L.R.2d 291

Judicial absolutism is not a part of the American way of life, and the odious doctrine that the end justifies the means does not prevail in our system for the administration of justice.  In re Buchman's Estate, 267 P.2d 73, 123 C.A.2d 546, 47 A.L.R.2d 291

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Cal. 1979.  Alication of the due process clauses of the California Constitution must be determined in the context of the individual's due process liberty interests in freedom from arbitrary adjudicative procedures; thus, when a person is deprived of a statutory conferred benefit, due process analysis must start, not with a judicial attempt to decide whether the statute has created an "entitlement" that can be defined as "liberty" or "property", but with an assessment of what procedural protections are constitutionally required in light of the governmental and private interests at stake.  West's Ann.Const. art. 1 Sec.Sec. 7(a), 15.  People v. Ramirez, 599 P.2d 622, 158 Cal Rptr. 316, 25 C.3d 260.

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Cal.A. 3Dist. 1985.  Cardinal principle of substantive due process is that a law which deprives a person of life, liberty, or property must not be product of arbitrary legislative judgment; such a law must be reasonably related to the object sought to be attained by its enactment.  U.S.C.A. Const.Amends. 5, 14.  People v. Armbruster, 210 Cal.Rptr.  11, 163 C.A.3d 660.

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Cal.A. 1979.  Substantive due process prohibits governmental interference with a person's fundamental right to life, liberty or property by unreasonable or arbitrary legislation.  U.S.C.A.Const.  Amend. 14; West's Ann.  Const. art. 1 Sec. 7.  In re David B., 154 Cal.Rptr. 63, 91 C.A.3d 184.

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D.C.Cal 1982.  Question as to whether individual has an interest protected by due process is not merely "weight" of the interests but rather, whether nature of the interest is one within contemplation of "liberty or property" language of Fourteenth Amendment.  U.S.C.A. Const.Amend. 14.

D.C.Cal. 1980.  It is nature of interest at stake in proceeding, that determines whether constitutional requirements of due process aly; alleged violations of "rights" that arise exclusively out of failure to comply with procedures provided by city charter, ordinances and regulations do not sustain a federal constitutional claim.  U.S.C.A.Const. Amend. 14.  Contra Costa Theater, Inc. v. City of Concord, 511 F.Su. 87. affirmed 686 F.2d 798, certiorari denied 103 S.Ct. 1777, 460 U.S. 1085, 76 L.Ed.2d 349.

D.C.Cal.1973.  To determine whether due process requirements aly, court must not look to the weight, but to the nature of the interests at stake.  U.S.C.A.Const Amends. 5, 14.  Perkins v. Regents of University of California, 353 F.Su. 618.

D.C.Cal. 1972.  To receive due process protection, interests in dispute need not reach level of the traditional constitutional "right." U.S.C.A.Const. Amends. 5, 14.   Keller v. Kate Maremont Foundation, 365 F.Su. 798, affirmed Geneva Towers Tenants Organization v. Federated Mortg. Investors, 504 F.2d 483.

Due process analysis requires consideration of precise nature of governmental function and private interests which will be affected by the government action.  U.S.C.A.Const. Amends. 5, 14.  Keller v. Kate Maremont Foundation, 365 F.Su. 798, affirmed Geneva Towers Tenants Organization v. Federated Mortg. Investors, 504 F.2d 483.

D.C.Cal. 1971.  Procedural due process is not required only when some "vested right" is being impaired.  U.S.C.A.Const. Amend. 14.   Clutchette v. Procunier, 328 F.Su. 767, modified, cause remanded 497 F.2d 809, modified 510 F.2d 613, certiorari granted Enomoto v. Clutchette, 95 S.Ct 2414, 421 U.S. 1010, 44 L.Ed.2d 678, reversed Baxter v. Palmigiano, 96 S.Ct 1551, 425 U.S. 308, 47 L.Ed.2d 810, vacated, on remand 536 F.2d 305, on remand 471 F.Sup. 1113.

D.C.Cal. 1971.  Due process requires that government abide by basic principles of fairness when dispensing, or revoking, a privilege.  U.S.C.A.Const. Amend. 14.  Hester v. Craven, 322 F.Su. 1256.

Cal. 1980.  Identification of dictates of due process generally requires consideration of (1) private interest that will be affected by the official action, (2) risk of an erroneous deprivation of such interest through procedures used, and probable value, if any, of additional or substitute procedural safeguards, (3) dignitary interest in informing individuals of nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) governmental interest, including function involved and fiscal and administrative burdens that additional or substitute procedural requirement would entail. U.S.C.A.Const. Amend. 14; West's Ann.Const. Art. 1, Sec. 7.  Van Atta v. Scott, 613 P.2d 210, 166 Cal. Rptr. 149, 27 C.3d 424.

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Cal.A 2 Dist. 1984.  Identification of dictates of state due process, generally requires consideration of:  private interests that will be affected by official actions; risk of an erroneous deprivation of such interests through procedures used, and probable value, if any, of additional or substitute safeguards; dignitary interest in informing individual of nature, grounds and consequences of action and enabling them to present their side of story before responsible governmental official; and governmental  interests, including function involved and fiscal and administrative burdens that additional or substitute procedural requirement would entail.  West's Ann.Cal.Const. Art. 1 Sec.Sec. 7(a), 15.  Matter of Thomas, 206 Cal.Rptr. 719, 161 C.A.3d 721.

Cal.A. 1982.  Due process to be afforded in given case depends upon private interests that will be affected by official actions: risk of erroneous deprivation of such interests through procedures used, and probable value, if any, of additional or substitute procedural safeguards; and finally, government's interest, including function involved and fiscal and administrative burdens that additional or substitute procedural requirement would entail.  U.S.C.A.Const.Amends. 5, 14.  Broussard v. Regents of University of California, 184 Cal.Rptr. 460, 131 C.A.3d 636.

Cal.A. 1980.  When injury to reputation is combined with loss or damage to property interests of an individual, compliance with fundamental precepts of due process is imperative.  U.S.C.A.Const. Amend. 14.  Lackner v. St Joseph Convalescent Hospital, Inc. 165 Cal.Rptr. 198, 106 C.A.3d 524.

DUE PROCESS 253(1). Nature in general

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C.A.9(Cal) 1989.  In determining whether substantive due process rights have been violated, court will look to such factors as needed for governmental action in question, relationship between need and action, extent of harm inflicted, and whether action was taken in good faith or for purpose of causing harm.  U.S.C.A.Const.Amends. 5, 14.  Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1390, certiorari denied Doody v. Sinaloa Lake Owners Association, Inc., 110 S.Ct. 1317, 108 L.Ed.2d 493.

DEPRIVATION OF LIFE OR LIBERTY IN GENERAL.

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C.A.9(Cal) 1990.  Fundamental requirement of procedural due process are notice and opportunity to be heard before government may deprive person of protected liberty or property interest  Conner v. City of Santa Ana, 897 F.2d 1487

C.A.Cal. 1982.  Procedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the due process clause of the Fifth or Fourteenth Amendment.  U.S.C.A.Const.Amends. 5, 14.  Dash, Inc. v. Alcoholic Beverage Control Appeals Bd., 683 F.2d 1229.

C.A.Cal. 1981.  State must ultimately justify depriving person of protected liberty interest by determining that good cause exists for deprivation.  U.S.C.A.Const. Amend. 14.  Doe v. Gallinot, 657 F.2d 1017.

S.D.Cal. 1989.  Deprivation of liberty must be accompanied by procedural safeguards; trial court must consider significance of individual's interest, risk of erroneous determination through procedures used, and probable value of additional safeguards.  U.S.C.A. Const. Amends. 5, 14.  U.S. v. Terrones, 712 F.Su. 786.

D.C.Cal. 1984.  State must afford an individual certain procedural protections against deprivatory governmental action whenever there is a Fourteenth Amendment property of liberty interest at stake.  U.S.C.A. Const. Amend. 14.  Conti v. Dyer, 593 F.Su. 696.

D.C.Cal. 1980.  When liberty interest is impaired by arbitrary action of government, constitutional guarantee of due process has been violated.  U.S.C.A.Const. Amend. 14.  Kindem v. City of Alameda, 502 F.Su. 1108.

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D.C.Cal 1975.  The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact laws which will deprive individuals of their liberty without due process.  U.S.C.A.Const.Amend. 14; 42 U.S.C.A. Sec. 1983.  Li v. Procunier, 395 F.Su 871, sulemented 402 F.Su. 623.

D.C.Cal. 1975.  The purpose of due process hearing is to safeguard from deprivation the liberty or property rights of protected persons, and this can only be done where the requisite hearing is held before the decision maker so that the decision maker can sift through the facts, weigh the evidence and reach the appropriate conclusion.  U.S.C.A.Const. Amend. 5.  Ponce v. Housing Authority of Yulare County, 389 F.Su. 635.

Cal. 1984.  Procedures necessary to ensure reliability in fact finding process when state participates in deprivation of personal liberty are required by due process.  West's Ann.Cal.Const. Art. 1, Sec. 15.  People v. Geiger, 674 P.2d 1303, 199 Cal. Rptr. 45, 35 C.3d 510.

Cal. 1977.  When state participates in deprivation of person's right to personal liberty, even conditional liberty, due process requires that facts justifying that action be reliably established and, to that end, person must receive hearing after adequate written notice of basis for proposed action and an opportunity to aear in person and to present evidence in his own behalf, and he has right to confrontation by , and opportunity to cross-examine, adverse witnesses, a neutral and detached decision maker, findings by preponderance of evidence and record of proceeding adequate to permit meaningful judicial or appellate review.  U.S.C.S.Const. Amend. 14; West's Ann.Const. art. 1, Sec. 7(a).  In re Roger S., 569 P.2d 1286, 141 Cal.Rptr. 298, 19 C.3d 921.

Cal. 1975.  Due process clause requires proof beyond reasonable doubt not only of guilt of defendant in traditional criminal prosecution but also of dispositive fact or facts in any proceeding in which state threatens to deprive individual of his "good name and freedom."  U.S.C.A.Const. Amend. 14; West's Ann. Const. art. 1, Sec. 7(a).  People v. Burnick, 535 P.2d 352, 121 Cal.Rptr. 488, 14 C.3d 306.

Cal. 1970.  Where fundamental personal liberties are involved, they may not be abridged by states simply on showing that regulatory statute has some rational relationship to the effectuation of the proper state purpose; the state may prevail only upon showing a subordinating interest which is compelling and the law must be shown necessary and not merely rationally related to the accomplishment of a permissible state policy.  Cisty of Carmel-by-the-sea v. Young, 466 P.2d 225, 85 Cal.Rptr. 1, 2 C.3d 259, 37 A.L.R.3d 1313.

Cal. 1968.  State cannot deprive person of his life, liberty, or property without affording him opportunity to be heard by tribunal empowered to decide lawfulness of depravation.  In re Harris, 466 P.2d 148, 72 Cal.Rptr. 340, 69 C.2d 486.

Cal. 1963.  Fourteenth Amendment in declaring that state shall not deprive any person of life, liberty, or property without due process of law gives to each of these an equal sanction, recognizing liberty and property as co-existent human rights, and debars the states from any unwarranted interference with either.  U.S.C.A.Const.Amend. 14.  Department of Mental Hygiene v. Hawley, 379 P.2d 22, 28 Cal.Rptr. 718, 59 C.2d 247.

Cal.A. 1 Dist. 1989.  Right not to be deprived of life, liberty, or property without due process of law is fundamental constitutional right guaranteed by Federal and State Constitutions.  U.S.C.A. Const. Amend. 14; West's Ann. Cal. Const. Art. 1, Sec. 7(a).  Redevelopment Agency of City of Concord v. Tobriner, 264 Cal.Rptr. 481, 215 C.A.3d 1087, review denied.

Mandate of due process is that person must be afforded reasonable notice and opportunity to be heard prior to deprivation of significant liberty or property interest.  U.S.C.A. Const.Amend. 14; West's Ann.Cal. Const. Art. 1, Sec. 7(a).  Redevelopment Agency of City of Concord v. Tobriner, 264 Cal.Rptr. 481, 215 C.A.3d 1087, review denied.

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Cal.A. 4 Dist. 1985.  Where one's liberty is at stake, alication of strict-scrutiny test is required and it becomes government's burden to justify procedure by showing it has compelling interest which is furthered by procedure in question.  Conservatorship of Waltz, 213 Cal.Rptr. 529, 167 C.A.3d 835.

Cal.A. 4 Dist 1984.  "Procedural due process" rules exist to minimize risk of substantively unfair or mistaken deprivation of life, liberty or property by enabling persons to contest basis on which government proposes to deprive them of their protected interests.  U.S.C.A.Const.Amend. 5. McCaffrey v. Preston, 201 Cal.Rptr. 252, 154 C.A.3d 422.

Cal.A. 5 Dist. 1984.  Deprivation of freedom falls within prohibition against deprivation of liberty expressed in State and Federal Constitutions.  West's Ann.Cal. Const. Art. 1, Sec. 7(a); U.S.C.A. Const.Amends. 5, 14.  People v. Davis, 207 Cal.Rptr. 18, 160 C.A.3d 970.

Implicit in concept that freedom from arbitrary adjudicative processes is substantive element of one's liberty is that court will require sufficient information to make a reasoned decision that reflects and exercise of discretion; which must be given to important due process value of promoting accuracy and reasonable predictability in governmental decision making when individuals are subject to depravitory action.  West's Ann.Cal. Const. Art. 1, Sec. 7(a).  People v. Davis, 207 Cal.Rptr. 18, 160 C.A.3d 970.

Cal.A. 1979.  due process clauses of State and Federal Constitutions operate to prevent state from depriving any person of life, liberty or property without due process.  West's Ann.Const. art. 1, Sec. 7; U.S.C.A.Const.Amend. 14.  In re Watson, 154 Cal.Rptr. 151, 91 C.A.3d 455.

Cal.A. 1977.  If individual is condemned to suffer grievous loss of liberty, he must first be accorded due process of law, irrespective of burden imposed upon government agency.  U.S.C.A.Const. Amend. 14.  In re Anderson, 140 Cal.Rptr. 546, 73 C.A.3d 38.

  Fundamental mandate of Fourteenth Amendment is that person be afforded notice and opportunity to be heard prior to deprivation of significant liberty or property interest U.S.C.A.Const. Amend. 14.  In re Anderson, 140 Cal.Rptr. 546, 73 C.A.3d 38.

Cal.A. 1977.  Procedural due process requires that before an individual is deprived of property or his life and liberty he must be given notice and a hearing in order to determine the propriety of the deprivation upon consideration of elements of fundamental fairness and justice.  U.S.C.A.Const. Amend. 14; West's Ann.Const. art. 1, Sec. 7.  Abel v. Cory, 139 Cal.Rptr. 555, 71 C.A.3d 589.

Law Rev.  1978.  Constitutional liberty and property; federal common law and Section 1983.  51 So.Cal.L.R. 355.

Law Rev. 1977.  Reputation alone.  17 Santa Clara L.Rev. 959.

Law Rev. 1964.  Freedom of movement.  11 U.C.L.A.Law R. 481, 542.

Law Rev. 1960.  Our freedom based on law-Is liberty possible without law?  46 A.B.A.J. 506.

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C.D.Cal. 1990.  Right to personal security is a historic liberty interest protected by due process clause.  U.S.C.A. Const.Amends. 5, 14.  Talevich v. Voss, 734 F.Su. 425.

N.D.Cal. 1990.  Shooting by police could give rise not only to Fourth Amendment claim of excessive force, but also Fourteenth Amendment claim on ground that officers allegedly created dangerous situation victim found himself in shortly before he was shot.  U.S.C.A.Const.Amends. 4, 14.  Ward v. City of Sant Jose, 737 F.Su. 1502.

Victim’s Fourteenth Amendment rights are violated where police officers create dangerous situation leading to confrontation resulting in death.  U.S.C.A.Const.Amends. 4, 14.  Ward v. City of Sant Jose, 737 F.Su. 1502.

D.C.Cal.  1964.  Where police officers are involved in actions for deprivation of civil rights, motive bears heavily in determining what constitutes lack of due process, but specific intent to deprive a person of a specific constitutional right need not be present. U.S.C.A.Const. Amend. 14; 42 U.S.C.A. Sec. 1983.  Beauregard v. Wingard, 230 F.Su. 167.

Arrest by state officers without warrant or probable cause and with an ulterior motive, not with purpose of enforcing law, is an arrest without due process, and imprisonment by the officers pursuant to such arrest is likewise without due process.  U.S.C.A.Const. Amend. 14; 42 U.S.C.A. Sec. 1983.  Beauregard v. Wingard, 230 F.Su. 167.

Law Rev. 1956.  Denial of passport upon undisclosed information.  44 C.L.R. 579.

CRIMINAL PROSECUTIONS

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257. In general.

U.S.Cal. 1975.  Sixth Amendment rights of accused in all criminal prosecutions to be informed of nature and cause of accusation, to be confronted with witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have assistance of counsel for his defense are part of the "due process of law" that is guaranteed by Fourteenth Amendment to DEFENDANTS in criminal courts of state.  U.S.C.A.Const. Amends. 6, 14.  Faretta v. California, 95 S.Ct. 2525, 422 U.S. 806, 45 L.Ed.2d 562.

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U.S.Cal. 1952.  Due process of law is a historical product and is not to be turned into a destructive dogma against the states in the administration of their systems of criminal justice.  U.S.C.A.Const. Amend. 14.  Rochin v. People of Cal., 72 S.Ct. 205, 342 U.S. 165, 96 L.E.d. 183, 25 A.L.R.2d 1396.

Judicial review of the guarantee of due process imposes on Federal Supreme Court an exercise of judgment upon the whole course of proceeding to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offences. U.S.C.A.Const. Amend. 14.  Rochin v. People of Cal., 72 S.Ct. 205, 342 U.S. 165, 96 L.E.d. 183, 25 A.L.R.2d 1396.

In reviewing a state criminal conviction under a claim of right guaranteed by Due Process Clause of Fourteenth Amendment, Federal Supreme Court may not draw on merely personal and private notions and disregard the limits that bind judges in their judicial function, and even though the concept of due process of law is not final and fixed, these limits are derived from considerations that are fused in the whole nature of judicial process, and these are considerations deeply rooted in reason and in compelling traditions of the legal profession.  U.S.C.A.Const. Amend. 14.  Rochin v. People of Cal., 72 S.Ct. 205, 342 U.S. 165, 96 L.E.d. 183, 25 A.L.R.2d 1396.

Under the Due Process Clause of the Fourteenth Amendment, a state's convictions cannot be brought about by methods that offend a sense of justice.  U.S.C.A.Const. Amend. 14.  Rochin v. People of Cal., 72 S.Ct. 205, 342 U.S. 165, 96 L.E.d. 183, 25 A.L.R.2d 1396.

C.A.9(cal) 1985.  Right to notice under Firth and Sixth Amendments is personal to defendant.  U.S.C.A.Const. Amends. 5, 6.  U.S. v. Merchant, 760 F.2d 963, certiorari granted 106 S.Ct. 3293, 478 U.S. 1003, 92 L.Ed.2d 708, certiorari dismissed 107 S.Ct. 1596, 480 U.S. 615, 94 L.Ed.2d 614.

8A Cal D 2d-456

C.A.Cal. 1965.  Determination whether due process demands are met requires decision as to whether, upon the whole course of proceedings, and in all the attending circumstances, there was a denial of fundamental fairness, and this is a question of judgment and degree.  U.S.C.A.Const. Amend. 5.  Pinedo v. U.S., 347 F.2d 142 certiotati denied 86 S.Ct. 547, 382 U.S. 976, 15 L.Ed.2d 468.

C.A.Cal. 1961.  As alied to state criminal proceeding, denial of due process is failure to observe that fundamental fairness essential to very concept of justice.  U.S.C.A.Const. Amend. 14.  Linden v. Dickson, 287 F.2d 55.

8A Cal D 2d-458

Cal. 1972.  In most cases involving claims of due process deprivations, a showing of identifiable prejudice to accused is required, but under some circumstances there is such probability of prejudice to accused that prejudice is presumed.  U.S.C.A.Const. Amend. 14.  People v. Sirhan, 497 P.2d 1121, 102 Cal.Rptr. 385, 7 C.3d 710, certiorari denied 93 S.Ct. 1382, 410 U.S. 947, 35 L.Ed.2d 613.

Cal. 1967.  Utilization of constitutionally invalid prior conviction, at trial of a subsequent offense, for any purpose leading to a conviction for such subsequent offense, is violative of the due process of the Fourteenth Amendment.  U.S.C.A.Const. Amends. 6, 14.  People v. Coffey, 430 P.2d 15, 60 Cal.Rptr. 457, 67 C.2d 204.

Cal. 1966.  While primary value expressed by concept of procedural due process is that seeking to minimize the possibility that an innocent man will be punished, the due process concept does not begin and end with the concern that our processes for determination of guilt be reliable or fair, and there is the additional concern that the individual against whom these processes operate to be accorded treatment consistent with human dignity.  People v. Crovedi, 417 P.2d 868, 53 Cal. Rptr. 284, 65 C.2d 199.

Cal. 1962.  Where defendant is denied fair and impartial trial guaranteed by law, he is denied due process.  People v. Peres, 373 P.2d 617, 23 Cal.Rptr. 569, 58 C.2d 229, 3 A.L.R.3d 946.

Cal. 1962.  Conviction by means of obnoxious to federal concept of due process cannot be sustained.  People v. Ditson, 369 P.2d 714, 20 Cal.Rptr. 165, 57 C.2d 415, certiorari denied Cisneros v. California, 83 S.Ct. 67, 371 U.S. 852, 9 L.Ed.2d 88 and Ditson v. California, 83 S.Ct. 93, 371 U.S. 852, 9 L.Ed.2d 88, vacated 83 S.Ct. 519, 371 U.S. 541, 9 L.Ed.2d 508 cartiorari dismissed 83 S.Ct. 885, 372 U.S. 933, 9 L.Ed.2d 769.

   Courts must protect right of defendant to fair trial and due process of law in full measure as against power of state   People v. Ditson, 369 P.2d 714, 20 Cal.Rptr. 165, 57 C.2d 415, certiorari denied Cisneros v. California, 83 S.Ct. 67, 371 U.S. 852, 9 L.Ed.2d 88 and Ditson v. California, 83 S.Ct. 93, 371 U.S. 852, 9 L.Ed.2d 88, vacated 83 S.Ct. 519, 371 U.S. 541, 9 L.Ed.2d 508 cartiorari dismissed 83 S.Ct. 885, 372 U.S. 933, 9 L.Ed.2d 769.

Cal. 1956.  Where accused is denied a fair and impartial trial as guaranteed by law, procedure amounts to a denial of due process of law.  People v. Lyons, 303 P.2d 329, 47 C.2d 311.

Cal.A. 1 Dist. 1984.  Right of accused to due process of law is, in essence, right o fair opportunity to defend against State's accusations.  U.S.C.A.Const. Amend. 5.  People v. Reynolds, 199 Cal.Rptr. 375, 152 A.A.3d 42.

Cal.A. 4 Dist.  1984.  To punish a person because he has done what the law plainly allows is due process violation of the most basic sort.  U.S.C.A. Const.Amend. 14.  People v. Lucious, 200 Cal.Rptr. 251. 153 C.A.3d 416.

8A Cal D 2d-459

Cal.A.  1978.  Accused's right to due process is constitutional guarantee and it may not be granted, or withheld, according to court's discretion or rules attending criminal discovery.  U.S.C.A.Const. Amends. 5, 14.  Sallas v. Municipal Court For San Leandro-Hayward Judicial Dist. of Alameda County., 150 Cal.Rptr. 543, 86 C.A.3d 737.

Cal.A. 1973.  Punishment without trial is alien to ideal of due process.  Porno, Inc. v. Municipal Court for the Los Angeles Judicial Dist. of Los Angeles County, 108 Cal.Rptr. 797, 33 C.A.3d 122.

Cal.A. 1972.  As alied to criminal matters, due process generally includes notice, presence and a hearing, and representation by counsel. People v. Youngs, 99 Cal.Rptr. 901, 23 C.A.3d 180.

Law Rev. 1973.  Demands of due process in criminal prosecutions.  6 Loyola U.(L.A.) 165.

Law Rev. 1971.  The aims of the criminal law revisited: A plea for new look at "substantive due process".  44 So.Cal.L.R. 490

Law Rev. 1965.  The Bill of Rights as a code of criminal procedure.  53 C.L.R. 929.

Law Rev. 1965.  Rights of the accused.  17 Hastings L.J. 124.

Law Rev. 1964.  Pennsylvania statute assessing costs to acquitted DEFENDANTS held constitutional .  17 Stan.L.R. 152.

Law Rev 1959.  The concept of ordered liberty, the law of the land, rather than the incorporation of theory, as proper measures of due process clause of Fourteenth Amendment.  47 C.L.R. 238.

Law Rev. 1959. Fair trial.  34 S.Bar J. 953.

Law Rev. 1953.  Alication of Fourteenth Amendment to state criminal proceedings, necessity for a finding of prejudicial err of as basis for finding of lack of due process.  41 C.L.R. 672.

8A Cal D 2d-462

C.A.Cal. 1983. Prosecution is barred on due process grounds because of government actions only when government's conduct is so grossly shocking and so outrageous as to violate the universal sense of justice.  U.S.C.A.Const.Amend. 5.

C.A.Cal. 1982.  Right to due process is violated where government undertakes course of action in orted to penalize person for exercising protected statutory or constitutional right.  U.S.C.A.Const.Amend. 5.  U.S. v. Allen, 699 F.2d 453.

8A Cal D 2d-466

D.C.Cal. 1970.  Entrapment is affront to basic concepts of justice and violation of due process. U.S.C.A.Const.Amend. 14.  U.S. v. Chisum, 312 F.Su. 1307.

Cal.1963.  Suppression by state of material evidence deprives defendant of due process of law. In re Imbler, 387 P.2d 6, 35 Cal.Rptr. 293, 60 C.2d 554, certiorari denied 85 S.Ct. 196, 379 U.S. 908, 13 L.Ed.2d 181.

Cal. 1959.  The right to counsel includes reasonable opportunity to prepare for trial and the refusal to introduce any evidence may amount to a denial of a hearing.  People v. Linden, 338 P.2d 397, 52 C.2d 1, certiorari denied Linden v. California, 80 S.Ct. 127361 U.S. 867, 4 L.Ed.2d 106, certiorari denied 80 S.Ct. 600, 361 U.S. 969, 4 L.Ed.2d 549, certiorari denied 81 S.Ct. 94, 364 U.S. 849, 5 L.Ed.2d 73.

8A Cal D 2d-467

Cal.A. 5 Dist. 1987.  Proceedings against accused are rendered improper when conduct on part of law enforcement authorities is so outrageous as to interfere with accused's due process of law.  U.S.C.A.Const.Amend. 14.  People v. Tribble, 236 Cal.Rptr. 733, 191 C.A.3d 1108.

8A Cal D 2d-468

Cal.A. 1978.  Prosecutorial misconduct giving rise to violation of due process rights implies use of deceptive or reprehensible methods to attempt to persuade either court or jury; absent of good faith is essential ingredient of prosecutorial misconduct.  U.S.C.A.Const.Amends. 5, 14.  People v. Morgan, 150 Cal.Rptr. 712, 87 A.A.3d 59.

Cal.A.  1963.  Intentional suppression of material evidence by district attorney can result in denial of fair trial, and when it does, such suppression amounts to denial of due process.  People v. Mort, 29 Cal.Rptr. 650, 214 C.A.2d 596.

8A Cal D 2d-471

LawRev 1981.  Limitations upon retaliatory prosecution by vindictive prosecutor.  13 U.West L.A.L.Rev. 1.

LawRev 1979.  Why federal courts are not meticulously observing due process in entrapment situation?   11 Southwestern L.Rev. 687.

LawRev 1973  Defense of discriminatory prosecution.  6 Loyola U.(L.A.) 227.

LawRev 1962.  Disregard of constitutional rights by police officers.  48 A.B.A.J. 130.

LawRev 1962.  Due process of law for juveniles.  37 S.Bar J. 32

LawRev 1954.  The fourteenth amendment and the third degree.  6 Stan.L.R. 411.

258.Creaton of definition of offense.

D.C.Cal. 1968.  Due process clause requires that criminal statutes be strictly construed against prosecution and in favor of defendant.  U.S. v. Chaell, 292 F.Su. 494.

8A Cal D 2d-493

C.A.9(Cal.) 1988.  If police officer's conduct which results in injury to arrestee constitutes gross negligence or recklessness, as oosed to mere negligence, then it constitutes deprivation of arrestee's right to be free from excessive force, in violation of due process.  U.S.C.A. Const.Amend. 14; 42 U.S.C.A. Sec. 1983.  Fargo v. City of San Juan Bautista, 857 F.2d 638.

8A Cal D 2d-494

C.A.9(cal.)  1985.  Fifth and Eight Amendment's prohibitions of deprivation of liberty without due process and of excessive bail require careful review of pretrial detention orders to ensure that mandate of Bail Reform Act of 1984 for release under the least restrictive conditions that will reasonably assure appearance has been respected.  U.S.C.A. Const.Amends. 5, 8; 18 U.S.C.A. Sec. 3142(c)(2); 18 U.S.C. (1982 Ed.) Sec.Sec. 3146-3152.  U.S. v. Motamedi, 767 F.2d 1403.

8A Cal D 2d-495

D.C.Cal. 1983.  Claims relating to pretrial alication of physical force by police officers are properly governed under due process clause of the Fourteenth Amendment. U.S.C.A. Const. Amend. 14.  Soto v. City of Sacramento, 567 F.Su. 662.

Use of excessive force in arrest deprives a citizen of the liberty interest, that is, his right to be free from preconviction punishment without due process of law.  U.S.C.A. Const. Amend. 14.  Soto v. City of Sacramento, 567 F.Su. 662.

  

8A Cal D 2d-501

Law Rev. 1971. Resisting unlawful arrest - infringement of constitutional right - California Penal Code Se. 834-a Arthur R. Chenen.  5 U.S.F.L.R. 195.

PRELIMINARY EXAMINATION AND COMMITMENT.

8A Cal D 2d-501

C.A.9(Cal.) 1989.  County policy of conducting probable cause determinations only at warrantelss arrestees' arraignment, pursuant to California statute permitting as much as 48 hours plus intervening Sunday or holiday to elapse before the determination is made, violated arrestees' due process rights, and county was properly ordered to make probable cause determinations with respect to inmates housed in central urban center within 36 hours, where 36 hours provided county with ample time to complete its administrative procedures.  U.S.C.A. Const. Amend. 5; West's Ann.Cal.Penal Code Sed.Sec. 825, 991.  McLaughlin v. County of Fiverside, 888 F.2d 1276.

Cal.A.  1 Dist. 1983.  Although a defendant does not have a Sixth Amendment or state constitutional right to an open preliminary hearing, defendant's statutory right to an open preliminary hearing is closely aligned with certain values protected under the Firth, Sixth, and Fourteenth Amendment, which together provide a criminally accused person with a right to fair trial before an unbiased jury. U.S.C.A. Const.Amends. 5, 6. 14; West's Ann. Cal.penal Code Sec. 868.  Eversole v. Superior Court, 195 Cal.Rptr. 816, 148 C.A.3d 188.

Cal.A. 1966. Vehicle code requirement that one who so demands must immediately be taken before magistrate is designed to afford speedy opportunity for judicial determination and affords right of due process to accused and is thus entitled to strong suort and liberal construction by courts.  West's Ann.Vehicle Code, Sec. 40302(c).  Kramer v. Superior Court, Humboldt County, 48 Cal.Rptr. 897, 239 C.A.2d 500.

8A Cal D 2d-529

Cal.A. 1957.  When defendant is not permitted to ask questions about a material element of the crime, such as those concerning feigned accomplice, he is being denied a substantial right which amounts to denial of due process.  People v. Lawrence, 308 P.2d 821, 149 C.A.2d 435.

8A Cal D 2d-552

266(7). Presumptions, burden of proof, and weight of evidence.

U.S.Cal. 1989.  Due process clause of the Fourteenth Amendment denies states the power to deprive that accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense; jury instructions relieving states of this burden violate a defendant's due process rights.  U.S.C.A.Const.Amend. 14.  Carella v. California, 109 S.Ct. 2419, 105 L.Ed.2d 218, rehearing denied 110 S.Ct. 23, 106 L.Ed.2d 636.

8A Cal D 2d-552

C.A.9(cal.) 1989.  Due process requires state to prove every element of crime beyond reasonable doubt, and defective jury instruction can violate this requirement by effectively allowing government to presume element of intent.  U.S.C.A.Const.Amend. 14.  Watts v. Bonneville, 879 F.2d 685.

C.A.9(Cal.) 1986.  Violation of due process appears if criminal conviction is not based on evidence that has convinced trier of fact beyond reasonable doubt of existence of every element of offense.  U.S.C.A.Const.Amend. 5.  Newton v. Superior Court of California, In and For Alameda County, 803 F.2d 1051, certiorari denied 107 S.Ct. 2464, 481 U.S. 1070, 95 L.Ed.2d 873.

8A Cal D 2d-555

Cal. 1982.  Fourteenth Amendment for the United States Constitution guarantees due process of law and mandates that no person shall suffer the onus of criminal conviction except upon sufficient proof to convince a trier of fact beyond reasonable doubt of the existence of every element of the offense.  U.S.C.A.Const. Amend. 14.  In re Miguel L., 649 P.2d 703, 185 Cal.Rptr. 120, 32 C.3d 100.

Cal. 1975.  Due process clause requires proof beyond a reasonable doubt not only of guilt of defendant in traditional criminal prosecution but also of dispositive fact or facts in any proceeding in which state threatens to deprive individual of his "good name and freedom." U.S.C.A.Const. Amend. 14; West's Ann.Const. art. 1, Sec. 7(a).  People v. Burnick, 535 P.2d 352, 121 Cal.Rptr. 488, 14 C.3d 306.

Cal. 1973.  Due process clause of Fourteenth Amendment of Federal Constitution protects accused against conviction except upon proof beyond reasonable doubt; an erroneous instruction to jury which in effect reverses this burden of proof is therefore an infringement of defendant's constitutional right to due process, and such an error is not necessarily cured by instructions which state the rules correctly.  U.S.C.A.Const.Amend. 14.  People v. Serrato, 512 P.2d 289, 109 Cal.Rptr. 65, 9 C.3d 753.

Cal. 1971.  In order that presumption satisfy due process clause of Fourteenth Amendment there must be a rational connection between the facts provided and the facts presumed. U.S.C.A.Const. Amend. 14.   People v. Montalvo, 482 P.2d 205, 93 Cal. Rptr. 581, 4 C.3d 328, 49 A.L.R.3d 518.

8A Cal D 2d-556

Cal.A. 4 Dist. 1984.  Due process protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.  U.S.C.A.Const.Amend. 14.  People v. Acero, 208 Cal.Rptr. 565, 161 C.A.3d 217.

8A Cal D 2d-557

Cal.A. 1975. Due process clause of Fourteenth Amendment to Federal Constitution protects accused against conviction except upon proof beyond reasonable doubt.  U.S.C.A. Const.Amend. 14.  People v. Garcia, 126 Cal.Rptr. 275, 54 C.A.3d 61, certiorari denied California v. Carcia, 96 S.Ct. 2238, 426 U.S. 911, 48 L.Ed.2d 838.

Cal.A. 1972. If no evidence suort offense charged conviction violates due process provisions of Fourteenth Amendment.  U.S.C.A.Const. Amend. 14.   People v. Norwood, 103 Cal.Rptr. 7, 26 C.A.3d 148.

8A Cal D 2d-558

Cal.A. 1963.  Evidence establishing a conspiracy was admissible even though such crime was not charged in the information, and admission thereof did not violate defendant's rights under the Fourteenth Amendment. U.S.C.A.Const.Amend. 14.  People v. Demes, 33 Cal.Rptr. 896, 220 C.A.2d 423, certiorari denied 84 S.Ct. 1354, 377 U.S. 949, 12 L.Ed.2d 308.

8A Cal D 2d-559

Cal.Super. 1982.  To be proper in criminal prosecution, underlying fact giving rise to presumption must be provided beyond reasonable doubt, and due process requires that there be rational connection between proven fact and that presumed.  West's Ann.Cal.Evid.Code Sec. 607; U.S.C.A.Const.Amend. 14.  People v. Campos, 188 Cal.Rptr. 366, 138 C.A.3d Su. 1.

8A Cal D 2d-559.

LawRev.  1970. Use of statutory criminal presumptions as vulnerable to attack on due process grounds. 18 U.C.L.A.Law R. 164.

Law Rev. 1970 Statutory criminal presumptions - unconstitutionality.  22 Stan.L.R. 341.

CONFESSIONS, STATEMENTS, AND ADMISSIONS

266.1(1) In general

8A Cal D 2d-560

Cal. 1965. The use of involuntary confession results in denial of due process and requires reversal regardless of other evidence of guilt.  People v. Dorado, 398 P.2d 361, 42 Cal.Rptr. 169, 62 C.2d 338, certiorari denied 85 S.Ct. 1765, 381 U.S. 937, 14 L.Ed.2d 702.

Cal.a. 5 Dist. 1987.  It is a deprivation of due process to base a conviction, in whole or in part, on coerced confession, regardless of its truth,  and even though there may be sufficient other evidence to suort the conviction.  U.S.C.A.Const.Amend. 14.  People v. Zaragoza, 236 Cal.Rptr. 299, 188 C.A.3d 723, review denied.

8A Cal D 2d-561

Cal.A.1976.  Evidentiary use of an involuntary confession or admission in a criminal case is a denial of due process; the coercion may be physical or psychological; the totality of circumstances must be taken into account; the reviewing court must examine the uncontradicted facts and determine independently whether the statements were voluntary.  People v. Writht, 131 Cal.Rptr. 311, 60 C.A.3d 6.

Cal.A. 1967.  The use of an illegally obtained confession results in a denial of due process and results in a denial of due process and requires reversal of a defendant's conviction regardless of other evidence of guilt.  People v. Trumpour, 61 Cal.Rptr. 899, 253 C.A.2d 934.

Cal.A. 1963.  Evidentiary use of involuntary confession is denial of due process, violating both federal and state Constitutions and requiring reversal of conviction, even in presence of corroborating evidence of guilt.  People v. Sigal, 34 Cal.Rptr. 767, 221 C.A.2d 684.

8A Cal D 2d-562

LawRev.  1962.  Due process reasons for excluding juvenile court confessions from criminal trials.  50 C.L.R. 902.

LawRev. 1961.  Due process: use of confession obtained by fraud consistent with due process unless fraud likely to procure untrue statement.  8 U.C.L.A.Law R. 193.

Law.Rev.  1953.  Prejudice from illegally obtained confession as basis for claim of lack of due proces.  41 C.L.R. 672.

8A Cal D 2d-562

Cal.A. 1965.  Obtaining incriminating statements through coercive methods or in violation of right to counsel or to remain silent constitutes a denial of due process and an invasion of constitutionally guaranteed rights.  People v. Haley, 44 Cal.Rptr. 346, 234 C.A.2d 444.

PROMISES OR OTHER INDUCEMENTS; THREATS AND FEAR.

8A Cal D 2d-565

U.S.Cal.  1958.  The Fourteenth Amendment prohibits use of coerced confessions in state prosecutions.  U.S.C.A.Const.Amend. 14.  Cooker v. State of Cal., 78 S.Ct. 1287, 357 U.S.433, 2 L.Ed.2d 1448, rehearing denied 79 S.Ct. 12, 358, 3 L.Ed.2d 92.

8A Cal D 2d-566

Cal. 1960.  Due process of law clause of the Fourteenth Amendment requires exclusion of coerced admission if they are sufficiently damaging.  U.S.C.A.Const.Amend. 14.  People v. Atchley, 346 P.2d 746, 53 C.2d 160, certiorari granted Atchley v. California, 80 S.Ct. 1081, 362 U.S. 987, 4 L.Ed.2d 1021, certiorari dismissed 81 S.Ct. 1051, 366 U.S. 207, 6 L.Ed.2d 233.

Cal.1959.  In criminal prosecution use of confession obtained by force, fear, promise of immunity or reward constitute a denial of due process of law both under federal and state constitutions, requiring reversal of conviction although other evidence may be consistent with guilt.  People v. Berve, 332 P.2d 97, 51 C.2d 286.

Cal.A. 1963.  Due process bars conviction by use of coerced confession without regard to its truth.  People v. Sigal, 34 Cal.Rptr. 767, 221 C.A.2d 684.

Cal.A.1963.  Confessions obtained as result of physical abuse or psychological torture are inadmissible as violative of due process.  People v. Jones, 34 Cal.Rptr. 267, 221 C.A.2d 37, certiorari denied 84 S.Ct. 1174, 377 U.S. 911, 12 L.Ed.2d 181.

Cal.A. 1961.  Conviction and sentence based on confession obtained by coercion, brutality, and violence are not in compliance with due process.  U.S.C.A.Const.Amend. 14; West's Ann.Const. art. 1, Sec. 8.  People v. Almarez, 12 Cal.Rptr. 111, 190 C.A.2d 380.

Cal.A. 1960.  Use of a confession, obtained either by physical or psychological coercion as a means of obtaining a finding or verdict of guilt constitutes a violation of due process clauses of federal and state constitutions.  People v. Monatano, 7 Cal.Rptr. 307, 184 C.A.2d 199.

Cal.A. 1958. The use of a confession obtained by either physical or psychological coercion as a means of obtaining or finding a verdict of guilt, constitutes a violation of due process clauses of United States and state Constitutions. U.S.C.A.onst. Amend. 14; West's Ann.Const. art. 1, sec. 13.  People v. Speaks, 319 P.2d 709, 156 C.A.2d 25. 

RIGHT TO TRIAL BY JURY

8A Cal D 2d-569

Cal. 1973.  "Vicinage" requirement as stated in the Sixth Amendment, namely, trial by a jury of district wherein the crime shall have been committed, is an essential feature of jury trial preserved though changed by the Sixth Amendment and made binding upon the states by the Fourteenth Amendment.  U.S.C.A.Const.Amends. 6, 14.  People v. Jones, 510 P.2d 705, 108 Cal.Rptr. 345, 9 C.3d 546.

8A Cal D 2d-570

Cal.A. 1979. Right to trial by jury selected from residents of vicinage is guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution.  U.S.C.A.Const.Amends. 6, 14.  Peple v. Remiro, 153 Cal.Rptr. 89, 89 C.A.3d 809, certiorari denied Remiro v. California, 100 S.C.t. 160, 444 U.S.876, 62 L.Ed.2d 104 and California v. Little, 100 S.Ct 288, 444 U.S. 937, 62 L.Ed.2d 197.

Cal.A. 1977.  Requirement that jury represents fair cross section of community is fundamental part of Sixth Amendment guarantee to jury trial, which is made binding on states by virtue of Fourteenth Amendment.  U.S.C.A.Const. Amends. 6, 14.  People v. Manson, 139 Cal.Rptr. 275, 71 C.A.3d i, certiorari denied Manson v. California, 98 S.Ct. 1582, 435 U.S. 953, 55 L.Ed.2d 803.

8A Cal D 2d-571

Cal.A. 1960.  Defendant's rights, which may be waved in criminal case without affecting due process, are: to be brought to trial within 60 days after filing of information; to a public trial; to any trial at all by plea of guilty; to trial by jury; to be confronted with witnesses against him; to defend with counsel; and to be put in jeopardy only once for same offense by failure to raise plea.  People v. Norman, 1 Cal.Rptr. 699, 177 C.A.2d 59, certiorari denied 81 S.Ct. 56, 364 U.S. 820, 5 L.Ed.2d 51.

Cal.Super. 1974.  Federal constitutional provisions relating to jury trials are applicable to states through Fourteenth Amendment.  West's Ann.Const. art. 1, Sec. 7; U.S.C.A.Const. art. 3, Sec. 2; Amends. 6, 14; West's Ann.Pen. Cosde, Sec. 19c.  People v. Oenheimer, 116 Cal.Rptr. 795, 42 C.A.3d Su. 4.

LawRev. 1965.  Requirement of an impartial jury.  17 Hastings L.J. 80.

JUDICIAL ERROR.

8A Cal D 2d-400

Cal.A. 1973.  Due process alies to construction of statutes by courts.  People v. Sobiek, 106 Cal.Rptr. 519, 30 C.A.3d 458, 82 A.L.R.3d 804, certiorari denied Sobiek v. California, 94 S.Ct. 155, 414 U.S. 855, 38 L.Ed.2d 104.

HABEAS CORPUS

8A Cal D 2d-422

C.A.Cal. 1953.  Under California law, where alication for writ of habeas corpus alleges violation of due process which is dehors the record of criminal proceeding, California Supreme Court is required to issue writ and denial of alication is denial of due process.  West's Ann.Pen.Code. Sec.Sec. 1476, 1483; U.S.C.A.Const.Amends. 5, 14.  Thomas v. Teets, 205 F.2d 236, certiorari denied 74 S.Ct. 240, 346 U.S. 910, 98 L.Ed. 407.

JURISDICTION

8A Cal D 2d-491.

Atty.Gen. 1950.  Conviction by court lacking jurisdiction can be contended to be in violation of due process clause of Fourteenth Amendment (U.S.C.A.Const.)  50-10, 15 Op.Atty.Gen 69.

LAW SUIT

8A Cal D 2d-399

C.D.Cal. 1990.  Violation of substantive due process is shown only when conduct involved is such as to "shock the conscience" U.S.C.A.Const.Amends. 5, 14.  Talevich v. Voss, 734 F.Su. 425.

Cal. 1975.  Use of excessive force which shocks conscience violates due process of law.  West's Ann.Const. art. 1, Sec. 13; U.S.C.A.Const.Amends. 4, 14, 14, Sec. 1.  People v. Bracamonte, 540 P.2d 624, 124 Cal.Rptr. 528, 15 C.3d 394.

8A Cal D 2d-400

Cal. 1953. Judicial decisions may be overruled and dicta may be disaroved without violating either due process clause of United States Constitution. U.S.C.A.Const.Amends. 5, 14.  In re Los Angeles County Pioneer Soc., 257 P.2d 1, 40 C.2d 852, certiorari denied Los Angeles County Pioneer Soc. v. Historical Soc. of Southern Cal., 74 S.Ct. 139, 346 U.S. 888, 98 L.Ed. 392, rehearing denied 74 S.Ct. 306, 346 U.S. 928, 98 L.Ed. 420

Cal.A. 2Dist. 1990. Egregious government conduct in the form of excessive and brutal use of force violates substantive due process.  U.S.C.A.Const.Amend. 14.  Wright v. City of Los Angeles, 268 Cal.Rptr. 309, 219 C.A.3d 318, review denied.

A8 Cal D 2d-420.

C.A.Cal. 1974.  Due process clause forbidding state from depriving any person of liberty denotes not merely freedom from bodily restraint but also peripheral benefits, such as freedom from serious damage to one's standing and associations in the community.  U.S.C.A.Const. Amend. 14.  Paskaly v. Seale, 506 F.2d 1209.

D.C.Cal. 1983.  Right to hold specific employment and to follow chosen career free from unreasonable governmental interference comes within liberty and property concepts of Fifth Amendment, with "property" consisting of employment itself and "liberty" consisting of freedom to follow a career.  U.S.C.A.Const.Amend. 5.  Clemente v. U.S., 568 F.Su. 1150, reversed 766 F.2d 1358, certiorari denied 106 S.Ct. 881, 474 U.S. 1101, 88 L.Ed.2d 917.

D.C.Cal. 1977.  The right to liberty proclaimed by Fourteenth Amendment denotes not merely freedom from bodily restraint, but also right of individual to contract, to engage in any of common occupations of life and generally, to enjoy those privileges long recognized at common law as essential to orderly pursuit of hainess by free men.  U.S.C.A.Const. Amend. 14.  Orrin W. Fox Co. v. New Motor Vehicle Bd. of State of Cal., 440 F.Su. 436, injunction stayed 98 S.Ct. 359, 434 U.S. 1345, 54 L.Ed.2d 439, probable jurisdiction noted 98 S.Ct. 1230, 434 U.S. 1060, 55 L.Ed.2d 760, reversed 99 S.Ct 403, 439 U.S. 96, 58 L.Ed.2d 361.

One basic requirement of due process is that "liberty" of a person may be curtailed only after a hearing.  U.S.C.A.Const.Amend. 14.  Orrin W. Fox Co. v. New Motor Vehicle Bd. of State of Cal., 440 F.Su. 436, injunction stayed 98 S.Ct. 359, 434 U.S. 1345, 54 L.Ed.2d 439, probable jurisdiction noted 98 S.Ct. 1230, 434 U.S. 1060, 55 L.Ed.2d 760, reversed 99 S.Ct 403, 439 U.S. 96, 58 L.Ed.2d 361.

8A Cal D 2d-421.

Cal. 1979.  Minors have a liberty interest that entitles them to due process whenever a state initiates action to deprive them of liberty.  U.S.C.A.Const.Amend. 14.  In re Scott K., 595 P.2d 105, 155 Cal.Rptr. 671, 24 C.3d 395, certiorari denied Fare v. Scott K., 100 S.Ct. 468, 444 U.S. 973, 62 L.Ed.2d 388.

Cal.A. 5 Dist. 1984.  It is fundamental to due process that an individual be accorded the fullest opportunity to preserve his rights and defend against charges and that, when an individual is subject to deprivatory governmental action, he always has a due process liberty interest both in fair and unprejudiced decision making and in being treated with respect and dignity.  U.S.C.A.Const.Amends. 5, 14; West's Ann.Cal. Const. Art. 1, Sec. 15.  People v. Hernandez, 206 Cal.Rptr. 843, 160 A.A.3d 725.

RE: CORPORATION

8A Cal D 2d-394

Corporate plaintiff can assert rights under the Fourteenth Amendment and suits under the Civil Rights statutes by corporate plaintiffs are also permissible.  42 U.S.C.A. Sec 1983; U.S.C.A.Const. Amend. 14. California Diversified Promotions, Inc. v. Musick, 505 F.2d 278

8A Cal D 2d-393

C.A.Cal 1980.  Allegation by corporation that the Small Business Administration disorientated against it because its owner was black stated a cause of action under the Fifth Amendment; corporation may suffer injury, actionable under the Fifth Amendment, from unlawful discrimination against its officers and directors in their corporate capacities or against it because its officers or directors are members of minority groups.  U.S.C.A.Const.Amend. 5. Marshall v. Klee, 637 F.2d 1217

8A Cal D 2d-394

D.C.Cal. 1979.  The Fourteenth Amendment explicitly extends equal protection and due process of law to all "persons"; law is well settled that these protections aly to all people within jurisdiction of the United States, whether here legally or otherwise.  U.S.C.A.Const. Amend. 14.  U.S. v. Otherson, 480 F.Su. 1369.

8A Cal D 2d-393

C.A.9(Cal.) 1987. Corporation is "person" possessing Fourteenth Amendment due process rights.  U.S.C.A. Const.Amend. 14.  San Bernardino Physicians' Services Medical Group, Inc. v. San Bernardino County, 825 F.2d 1404

8A Cal D 2d-394

D.C.Cal. 1974.  Aliens are "persons" and are entitled to the rights to due process and the access to United States courts that the United States Constitution grants to "persons."  U.S.C.A.Const. art. 3, Sec. 2; 28 U.S.C.A. Sec. 1332.  Times Newspapers Ltd. (Of Great Brittain) v. McDonnell Douglas Corp., 387 F.Du. 189.

D.C.Cal. 1953.  Aliens in the United States are persons entitled to the protection of the Fifth Amendment, but they have no constitutional right to be naturalized.  U.S.C.A.Const. Amend. 5.

U.S.Cal. 1954.  An "alien" is a "person" entitled to the same protection for his life, liberty and property under the due process clause as is afforded to a citizen. U.S.C.A.Cons. Amend. 5.  Galvan v. Press, 74 S.Ct 737, 347 U.S. 522, 98 L.Ed. 911 rehearing denied 75 S.Ct. 17, 348 U.S. 852, 99 L.Ed. 671.

8A Cal D 2d-395

Cal.A. 1975.  Aliens in United States are afforded many, if not most, of privileges and rights enjoyed by its citizens and are entitled to equal protection of laws encompassed in Fourteenth Amendment in states in which they reside and are persons within protection of Fifth Amendment who may not be deprived of life, liberty or property without due process of law.  U.S.C.A.Const. Amends. 5, 14.  Alonso v. State, 123 Cal.Rptr. 536, 50 C.A.3d 242, 87 A.L.R.3d 678, certiorari denied 96 S.Ct. 1492, 425 U.S. 903, 47 L.Ed.2d 752.

Law Rev. 1978.  Child, parent, state and due process clause.  51 So.Cal.L.R. 769.

RELATED TO STATE OR STATE ACTION.

8A Cal D 2d-409

C.A.9(Cal) 1985.  Where injury is product of operation of state law, regulation, or institutionalized practice, and thus within power of state to control, state may not take away protected interest without hearing in advance of injury.  U.S.C.A.Const.Amends. 5, 14.  Haygood v. Younger, 769 F.2d 1350, certiorari denied Cranke v. Haygood, 106 S.Ct 3333, 478 U.S. 1020, 92 L.Ed.2d 739.

D.C.Cal. 1970.  Fourteenth Amendment protects citizen against state itself and all of its creatures, including boards of education.  U.S.C.A.Const. Amend. 14.  Alexander v. Thompson, 313 F.Su. 1389.

D.C.Cal. 1964.  First eight amendments, of bill of rights, of federal constitution were intended as a restriction upon federal government, and Fourteenth Amendment constitutes limitation upon the states.  U.S.C.A.Const.Amends. 1 et seq., 4, 14.  Beauregard v. Wingard, 230 F.Su. 167.

In so far as due process under Fourteenth Amendment requires states to observe any immunities that are valid against federal government by force of specific pledges of particular amendments, it does so because they have been found to be implicit in concept of ordered liberty and thus through Fourteenth Amendment have become valid against the states.  U.S.C.A.Const.Amend. 14.  Beauregard v. Wingard, 230 F.Su. 167.

D.C.Cal. 1961.  Prohibitions of Fourteenth Amendment to federal Constitution aly only in cases involving state action. U.S.C.A.Const.Amend. 14.  Koch v. Zuieback, 194 F.Su. 651, affirmed 316 F.2d 1.

Cal. 1974.  For due process purposes, action of the state which is not merely permissive of discrimination but a significant encouragement of it, and the consequent involvement of the state in it, constitutes state action.  U.S.C.A.Const.Amend. 14.  Kruger v. Wells Fargo Bank, 521 P.2d 441, 113 Cal.Rptr. 449, 11 C.3d 352, 65 A.L. R.3d 1266.

Cal. 1968.  Constitutional scrutiny of state action is not predicated upon finding of direct restriction, and there need only be causative relation between state action and obnoxious result.  Huntley v. Public Utilities Commission, 442 P.2d 685, 69 Cal.Rptr. 605, 69 C.2d 67.

Cal.A.  1954. The Fifth Amendment to the Federal Constitution alies to the Federal Government and not to the several states, and does not constitute a limitation on power of states, and hence had no alication in proceeding under Reciprocal Enforcement of Suort Law to enforce suort of minor child.  West's Ann.Code Civ.Poce. SecSec. 1650-1681; U.S.C.A.Const. Amend. 5.  Smith v Smith, 270 P.2d 613, 125 C.A.2d 154.

Law Rev. 1964.  A statement against state action.  37 So.Cal.L.R. 463.

INCORPORATION OF BILL OF RIGHTS

8A Cal D 2d-421

U.S.Cal. 1974.  The Fourteenth Amendment makes the constitutional command of the First Amendment applicable to the states.  U.S.C.A.Const. Amends. 1, 14.  Procunier v. Martinez, 94 S.Ct. 1800, 416 U.S. 396, 40 L.Ed.2d 224.

Cal. 1974.  Provisions of the First Amendment are binding on the states through the due process clause of the Fourteenth Amendment. U.S.C.A.Const. Amends. 1. 14.  California Educational Facilities Authority v. Priest, 526 P.2d 513, 116 Cal.Rptr. 361, 12 C.3d 593.

RE: CHILDREN

8A Cal D 2d-394

Cal.A. 3Dist. 1984.  Minors are "persons" under State Constitution possessed of variety of due process rights afforded to defendant in criminal proceedings.  In re Dung T., 206 Cal.Rptr. 772, 160 C.A.3d 697.

8A Cal D 2d-428

255(4). Minors; juvenile delinquents.

C.A.Cal. 1974.  Due process requires state to aoint counsel for indigent parent in child dependency proceeding whenever parent, unable to present his or her case properly, faces substantial possibility of loss of custody or of prolonged separation from child.  West's Ann. Cal.Welfare & Inst.Code, Sec. 600.  Cleaver v. Wilcox, 499 F.2d 940

D.C.Cal. 1973.  Applicable due process standard in juvenile proceedings is one of "fundamental fairness".  Taylor v. Breed, 58 F.R.D. 101.

Cal. 1977.  Minor is entitled to protection of due process whenever state itself initiates action, whether civil or quasi criminal, to deprive minor of his liberty.  U.S.C.A.Const. Amend. 14; West's Ann.Const. art. 1, Sec. 7(a).  In re Roger S., 569 P.2d 1286, 141 Cal.Rptr. 298, 19 C.3d 921.

Even conditional liberty interest, such as that of minor, is entitled to protections of due process when state is involved to any significant degree in its diminution.  U.S.C.A.Const. Amend. 14; West's Ann.Const. art. 1, Sec. 7(a).  In re Roger S., 569 P.2d 1286, 141 Cal.Rptr. 298, 19 C.3d 921.

8A Cal D 2d-430

Cal. 1974.  Presentation of argument by counsel based on evidence introduced at hearing is an integral part of the right of a juvenile to be represented by counsel at a jurisdictional hearing, and the denial of that right unless waved is a denial of due process.  West's Ann.Welfare & Inst.Code, Sec.Sec. 602, 680.  In re F, 520 P.2d 986, 113, Cal.Rptr. 170, 11 C.3d 249.

Cal. 1971.  Juveniles are entitled to foundational protection of bill of rights in proceedings which may result in confinement or other sanctions, whether state labels such proceedings which may result in confinement or other sanctions, whether state labels such proceedings "criminal" or "civil"; disaroving cases inconsistent with opinion to extent of inconsistency.  U.S.C.A.Const. Amends. 5, 14; West's Ann.Const. art. 1, Sec. 13; West's Ann.Welf. & Inst.Code, Sec.Sec. 590-914, 602, 702, 707.  M. v. Superior Court of Shasta County, 482 P.2d 664, 93 Cal.Rptr. 752, 4 C.3d 370.

Cal.A. 1 Dist. 1985.  Due process requires that parents be afforded notice and opportunity to be heard at jurisdictional hearings in juvenile court dependency proceedings.  U.S.C.A.Const.Amend. 14; West's Ann.Cal. Welf. & Inst.Code Sec. 300.  In re C.P., 230 Cal.Rptr. 864, 165 C.A.3d 270.

Cal.A.2Dist. 1988.  When particular minor's dependence on or need for his or her parent renders preparation of defense impossible without parent's assistance and when that parent is willing and able to assist the minor, such a minor does have right to reasonable continuance  to make reasonable efforts to secure presence of his or her parent at adjudication hearing and such right stems not from parent's right to be present, but rather from minor's own due process right to fair and just hearing.  West's Ann.Cal.Welf. & Inst.Code Sec. 602; U.S.C.A. Const.Amends. 5, 14.  In re Eric J. 244 Cal.Rptr. 861, 199 C.A.3d 624.

8A Cal D 2d-432

Cal.A. 4 Dist. 1986.  Minor has same due process right as adult not to be more severely punished for exercising right to hearing with procedural safeguards found to be constitutional rights for juveniles.  U.S.C.A. Const. Amends. 5, 14.  In re Lawanda L., 223 Cal.Rptr. 685, 178 C.A.3d 423, review denied.

Cal.A. 1982.  Use in juvenile proceeding of confession obtained without intelligent, knowledgeable waiver of constitutional rights violates Fifth Amendment and due process clause of Fourteenth Amendment.  U.S.C.A.Const. Amends. 5, 14; West's Ann.Welf. & Inst.Code Sec. 602.  In re Abdul Y., 182 Cal.Rptr. 146, 130 C.A.3d 847.

Cal.A. 1981.  Due process requires prosecution to disclose all material evidence favorable to accused in juvenile proceeding whether such evidence relates directly to issue of guilt or can lead defense to favorable evidence.  U.S.C.A.Cons. Amend. 14.  In re Gary G., 171 Cal.Rptr. 531, 115 C.A.3d 629.

Cal.A. 1980.  A minor has a right to the essentials of due process and fair treatment before a juvenile referee or judge.  West's Ann.Welfare & Inst.Code, Sec.Sec. 251, 252, 254, 602; U.S.C.A.Const. Amend. 5.  People v. Eduardo N.G., 166 Cal.Rptr 873, 108 C.A.3d 745.

A process which constitutionally limits hearing officer to finding against minor and prohibits finding in his favor, no matter how weak a case against him, is violative of due process. West's Ann.Welfare & Inst.Code, Sec.Sec. 251, 252, 254, 602; U.S.C.A.Const. Amend. 5.  People v. Eduardo N.G., 166 Cal.Rptr 873, 108 C.A.3d 745.

8A Cal D 2d-435

Cal.A. 1978.  Where father was not actually exercising control at time of jurisdictional hearing because juvenile court had earlier ordered minor detained following his mother's hospitalization, father, who had acknowledged paternity, had right to show that, as natural father, he was willing and was capable of exercising control over minor, and juvenile court denied due process in holding that gather's offer of proof was irrelevant.  West's Ann.Welfare & inst.Code, Sec. 300(a); Welfare & Inst.Code, Sec.Sec. 600, 600(a), St.1971, p. 3736.  In re Kelvin M., 143Cal.Rptr. 561, 77 C.A.3d 396.

Cal.A. 1977.  Juvenile proceedings which may result in substantial loss of freedom are regarded as quasi criminal in nature and, as a consequence, fundamental notions of due process and fairness must be strictly observed.  Wets's Ann.Welfare & Inst.Code, Sec. 702.5.  In Matter of Aaron N., 139 Cal.Rptr. 258, 70 C.A.3d 931.

8A Cal D 2d-436

Cal.A. 1975. Judgment freeing child from custody and control of its parents results in total severance of its natural ties between parents and child and amounts to taking of a "liberty" under due process clause of Constitution.  U.S.C.A.Const. Amends.  5, 14; West's Ann.Civ.Code. Sec. 232.  In re Susan Lynn M., 125 Cal.Rptr. 707, 53 C.A.3d 300.

Cal.A. 1974.  Parent in dependency proceeding is entitled to due process of law.  In re J.T., 115 Cal.Rptr. 553, 40 C.A.3d 633.

Notice of allegations upon which deprivation of custody of minor children is predicated is fundamental due process.  U.S.C.A.Const.Amend. 14.  In re J.T., 115 Cal.Rptr. 553, 40 C.A.3d 633.

Findings of fact made by juvenile court in adjudicating minors to be dependent children of court were conclusory in nature and denied mother of minor children due process of law in that such findings failed to arise her of court's reason for its decision and did not form adequate basis for revies.  West's Ann. Welfare & Inst.Code. Sec.Sec. 600-602, 702, 726(a-c).  In re J.T., 115 Cal.Rptr. 553, 40 C.A.3d 633.

8A Cal D 2d-437

Cal.A. 1971.  Parent had right to custody of her child of which she could not be deprived in dependency proceeding without essential ingredients of due process, including a fair hearing.  West's Ann.Welfare & Inst.Code. Sed. 600; U.S.C.A.Const. Amends. 5, 14;  R. v. Superior Court for Los Angeles County, 97 Cal.Rptr. 158, 19 C.A.3d 895.

8A Cal D 2d-438

Cal.A. 1970.  Proof beyond a reasonable doubt is a requisite to due process at adjudicatory state of a state juvenile court proceeding, and United States Supreme Court decision to that effect is applicable to cases pending on direct appeal at time of decision.  West's Ann.Welfare & Inst.Code, Sec. 700. In re W., 91 Cal.Rptr. 702, 12 C.A.3d 1120.

Cal.A. 1970.  "Preponderance of evidence" standard may not be alied by trial court in juvenile matter; proof beyond reasonable doubt is Fourteenth Amendment due process requirement applicable against state juvenile courts.  U.S.C.A.Const.Amend. 14.  In re G., 90 Cal.Rptr. 361, 11 C.A.3d 1193.

8A Cal D 2d-439

Cal.A. 1951.  Regardless of good intentions of public authorities in proceedings regarding wayward minors, such children should not be deprived of their liberty, nor their parents deprived of their children, without due process of law.  Ex parte Moilanen, 233 P.2d 91, 104 C.A.2d 835.

Law.Rev. 1973. Void for vagueness: State statutes proscribing conduct only for a juvenile. Edward R. Roybal.  1 Pepertrdine L.Rev. 1.

Law.Rev. 1972. Juvenile law - equal protection for juveniles in the post-adjudicateve process.  9 San Diego L.Rev. 345.

Law Rev. 1971. Admissibility of evidence in juvenile court: Constitutional considerations.  46. S.Bar J. 320.

Law Rev. 1970.  Sud process in juvenile delinquency proceedings - burden of proof.  3 Loyola U.(L.A.) 431.

Law Rev. 1967.  In re Gault, juvenile couts and lawyers, Norman Leftein.  53 A.B.A.J. 811

Law Rev. 1960.  Constitutional rights in juvenile court.   46 A.B.A.J. 1206.

8A Cal D 2d-503

Law Rev. 1966.  An analysis of the California decision bearing on the problem of defining a "custodial interrogation." Kenneth W. Graham, Jr.  14 U.C.L.A.Law R. 59.

RE: PRISONERS:

8A Cal D 2d-393

C.A.Cal. 1979.  In the context of prison environment, the guaranty of due process rights is no less important than is the guaranty to society at large; a prisoner does not shed his basic constitutional protections when he enters an American prison.  U.S.C.A.Const.Amends. 5, 14.  Mata v. Sumner, 611 F.2d 754, stay granted 100 S.Ct. 1630, 446 U.S. 1302, 64 L.Ed.2d 216, certiorari granted 100 S.Ct 3055, 448 U.S. 910, 65 L.Ed.2d 1139, vacated 101 S.Ct 764, 449 U.S. 539, 66 L.Ed.2d 722, on remand 649 F.2d 713, certiorari granted and vacated 102 S.Ct. 1303, 455 U.S. 591, 71 L.Ed.2d 480, on remand 696 F.2d 1244, certiorari granted and vacated 104 S.Ct. 386, 464 U.S. 957, 78 L.Ed.2d 332, on remand 721 F.2d 1251.

8A Cal D 2d-394

Prisoners are protected by the due process and equal protection clauses of the Fourteenth Amendment. U.S.C.A.Const. Amend. 14. Smith v. Schneckcloth, 414 F.2d 680.

Cal.A. 5 Dist. 1984.  It is fundamental to due process that an individual be accorded the fullest opportunity to preserve his rights and defend against charges and that, when an individual is subject to deprivatory governmental action, he always has a due process liberty interest both in fair and unprejudiced decision making and in being treated with respect and dignity.  U.S.C.A.Const.Amends. 5, 14; West's Ann.Cal. Const. Art. 1, Sec. 15.  People v. Hernandez, 206 Cal.Rptr. 843, 160 A.A.3d 725.

8A Cal D 2d-396

C.D.Cal. 1990.  When state puts person in danger, due process clause requires state to protect him to the extent that state's actions have put person at increased risk.  U.S.C.A.Const.Amends. 5, 14.  Talevich v. Voss, 734 F.Su. 425.

LIBERTIES AND LIBERTY INTERESTS PROTECTED.

8A Cal D2d-419

U.S.Cal. 1974.  The interests of prisoners and their correspondents in uncensored communications by letter, grounded as it is in the First Amendment, is plainly a "liberty" interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment, and, as such, it is protected from arbitrary governmental invasion.  U.S.C.A.Const. Amends. 1, 14.  Procunier v. Martinez, 94 S.Ct. 1800, 416 U.S. 396, 40 L.Ed.2d 224.

C.A.Cal. 1982.  Liberty interests protected by due process clause of Fourteenth Amendment includes right to be free from actions which impose stigma or other disability that forecloses one's freedom to take advantage of other employment oortunities.  U.S.C.A.Const.Amend. 14.  Erdelyi v. O'Brien, 680 F.2d 61.

8A Cal D 2d-423

D.C.Cal. 1964.  Person is deprived of his liberty when he is arrested and imprisoned, and freedom from arrest and from imprisonment except through due process are rights implicit in concept of ordered liberty and guaranteed by Fourteenth Amendment for Federal Constitution against invasion by state.  U.S.C.A.Const. Amend. 14.   Beauregard v. Wingard, 230 F.Sup. 167.

A8 Cal D 2d-455.

C.A.Cal 1980.  Right to due process of law is violated where the government increases the severity of alleged charges in response to the exercise of constitutional or statutory rights.  U.S.C.A.Const. Amends. 5, 14.  U.S. v. Burt, 619 F.2d 831.

Penalizing a person for doing what the law plainly allows him to do is a due process violation of the most basic sort.   U.S.C.A.Const. Amends. 5, 14.  U.S. v. Burt, 619 F.2d 831.

C.A.Cal. 1980.  The defendant's right to due process is violated where the prosecution increases the severity of alleged charges in response to the exercise of a constitutional or statutory right.  U.S.C.A.Const. Amends. 5, 14.  U.S. v. Rosales-Lopez, 617 F.2d 1349, certiorari granted 101 S.Ct. 71, 449 U.S. 819, 66 L.Ed.2d 21, affirmed 101 S.Ct. 1629, 451 U.S. 182, 68 L.Ed.2d 22.

C.A.Cal.  1975.  Due process requires fair administration of justice and guarantees the crucial right of an indigent to reasonably fair equality with those who have adequate financial means to protect their rights.  18 U.S.C.A. Sec. 3006A(e).  U.S. v. Hartfield, 513 F.2d 254.

8A Cal D 2d-457

Cal. 1979.  To punish a person for exercising a constitutional right is a due process violation of the most basic sort.  U.S.C.A.Const. Amend. 14.  In re Lewallen, 590 P.2d 383, 152 Cal.Rptr. 528, 23 C.3d 274, 100 A.L.R.3d 823.

8A Cal D 2d-463

C.A.Cal. 1981.  Right to due process of law is violated where the government increases severity of alleged charges in response to exercise of constitutional or statutory rights.  U.S.C.A.Const.Amend. 5.  U.S. v Hollywood Motor Car Co., Inc., 646 F.2d 384, reversed, certiorari granted 102 S.Ct. 3081, 458 U.S. 263, 73 L.Ed.2d 754, on remand 682 F.2d 1352.

C.A.Cal. 1980.  Prosecutorial vindictativeness is normally found where the government has occasioned to retry the defendant following the exercise of a procedural right.  U.S.C.A.Const. Amend. 5, 14.  U.S. v. Rosales-Lopez, 617 F.2d 1349, certiorari granted 101 S.Ct. 71, 449 U.S. 819, 66 L.Ed.2d 21, affirmed 101 S.Ct. 1629, 451 U.S. 182, 68 L.Ed.2d 22.

8A Cal D 2d-466

D.C.Cal. 1964.  Prohibition against effectively discriminating against indigent petitioners in collateral proceedings is imposed in federal proceedings by due process clause of Fifth Amendment. U.S.C.A.Const.Amend. 5.  Henderson v. U.S., 231 F.Su. 177.

Cal. 1985. Due process clause of California Constitution [West's Ann.Cal.Const. Art. 1, Sec. 7] prohibits increased charges motivated by prosecutorial vindictiveness.  In re Bower, 700 P.2d 1269, 215 Cal.Rptr. 267, 38 C.3d 865.

8A Cal D 2d-467

Cal.A. 4 Dist. 1984.  Due process dictates that defendant may not be deterred from exercising his constitutional right to attack his conviction by even possibility of prosecutorial retaliation.  U.S.C.A.Const.Amends. 5, 14.  In re Tirado, 198 Cal.Rptr. 682, 151 C.A.3d 341.

8A Cal D 2d-469 & 571

Cal.A. 1960.  Defendant's rights, which may be waved in criminal case without affecting due process, are: to be brought to trial within 60 days after filing of information; to a public trial; to any trial at all by plea of guilty; to trial by jury; to be confronted with witnesses against him; to defend with counsel; and to be put in jeopardy only once for same offense by failure to raise plea.  People v. Norman, 1 Cal.Rptr. 699, 177 C.A.2d 59, certiorari denied 81 S.Ct 56, 364 U.S. 820, 5 L.Ed.2d 51.

8A Cal D 2d-470

Cal.A.1951.  To compel a plea of guilty by threats, fraud or coercion, is denial of due process, and, in proper case, if found to exist, would warrant issuance of writ of error coram nobis but to be entitled to writ, alication must be filed with due diligence.  People v. Chapan, 234 P.2d 716, 106 C.A.2d 51.

8A Cal D 2d-491

Cal.A. 5 dist. 1985.  Double jeopardy clause of Fifth Amendment alies to states through due process clause of Fourteenth Amendment. U.S.C.A. Const.Amends. 5, 14.  In re Saul S., 213 Cal.Rptr. 541, 167 C.A.3d 1061, review denied.

Cal.A. 1981.  It is unfair and violates due process in criminal or quasi criminal proceedings to redetermine matters once resolved.  U.S.C.A. Const. Amend 14. Hoffman v. Superior Court, 177 Cal.Rptr. 868, 122 C.A.3d 715.

Law Rev 1976.  Doubel jeopardy and corporations. 28 Stan.L.Rev. 805

Law Rev 1970 Double jeopardy and the states-denial of due process.  3 Loyola U.(L.A.) 414

Law Rev 1959.  Due process and the federal construciton of double jeopardy.  10 Hastings L.J. 195. 

Law Rev 1954.  double jeopardy - due process under fourteenth amendments.  26 So.Cal.L.R. 443.

Law Rev 1953.  Conditionality of declaring mistrial and requiring accused to be presented to another jury.  39 .B.A.J. 405.

8A Cal D 2d-509

Cal. 1990.  Criminal defendant has due process rights to notice of charges and presentation of defense.  U.S.C.A.Cosnt.Amends. 6, 14.  People v. Jones, 792 P.2d 643, 270 Cal.Rptr. 611, 51 C.3d 34, 51 C.3d 294, modified.

Cal. 1989.  Conviction of non included offense implicates defendant's due process right to notice.  U.S.C.A. Const.Amends. 5, 14.  People v. Toro, 766 P.2d 577, 254 Cal.Rptr. 811, 47 C.3d 966, rehearing denied.

Cal. 1983.  To convict a defendant of an uncharged offense not included in accusatory pleading is a denial of due process unless defendant waves his fifth to be advised of the charge.  U.S.C.A.Const.Amend. 14.  People v. Fain, 667 P.2d 694, 193 Cal.Rptr. 890, 34 C.3d 350.

8A Cal D 2d-556

Cal.A. 1982.  Conviction founded upon testimony coerced by State would violate basic due process.   U.S.C.A.Const. Amend. 14.  People v. Claxton, 181 Cal.Rptr. 281, 129 C.A.3d 638.

8A Cal D 2d-571

Cal.A.  1957. Right of defendant to be confronted with witnesses against him, to be brought to trial within 60 days after filing of information, not to be put in double jeopardy, to public trial, to counsel and to trial by jury,  Petition of Spencer, for and on Behalf of Baird, 310 P.2d 454, 150 C.A.2d 561, 68 A.L.R.2d 628.

FEDERAL COURT

8A Cal D 2d-456

C.A.Cal.  1976.  Denial of due process in state criminal case, sufficient to justify federal court interference, is failure to observe that fundamental fairness essential to very concept of justice.  Nolen v. Wilson, 372 F.2d 15, certiorari denied 87 S.Ct. 2085, 387 U.S. 948. 18 L.Ed.2d 1337.

PHOTO COPY.

8A Cal D 2d-470

Cal.A.  1952.  Federal Rules of Criminal Procedure authorizing court at any time after filing of information or indictment to order attorney for Government to permit defendant to inspect and copy or photograph designated books, papers, documents or tangible objects obtained from or belonging to defendant or obtained from others by seizure or by process, has no alication in state courts and cannot be incorporated into Fourteenth Amendment to the federal Constitution as a limitation on state action.  Fed.RulesCrim. Proc. rule 16, 18 U.S.C.A.; U.S.C.A.Const.Amend. 14.  People v. Kross, 247 P.2d 44, 112 C.A.2d 602.

DURESS AND COERCION

A person is incapable of committing a crime where the act is committed or the omission is made under threats or menaces sufficient to show that he had reasonable cause to believe, and did believe, hit life would be endangered if he refused. This defense is unavailable, however, where the offense is punishable by death.  To establish the defense of duress in a criminal case, it is essential to show a threat of imminent violence.  The danger to the life of the person claiming the defense must be, or reasonably aear to be, imminent and immediately impinging; a future and remote danger is not sufficient.  This qualification alies not only to persons of age, but also to a minor otherwise capable of committing the crime involved.

An honest but unreasonable belief as to duress may negate the specific intent necessary for robbery and kidnaing for the purpose of robbery.  Where the evidence suggests an honest belief, which if reasonable , would absolve the defendant of liability for the charged crime, the court has a sua sponte duty to instruct on honest but unreasonable belief by defendant that his life was in danger.

DISCRIMINATORY ENFORCEMENT OF LAW

Discriminatory enforcement of the law may be a valid defense in a case in which the defendant can establish deliberate invidious discrimination by prosecutorial authorities.

ENTRAPMENT

Entrapment in California is that conduct of a law enforcement agent likely to induce a normally law-abiding person to commit an offense (sec. 2267).  It is impermissible for the police or their agents to pressure a suspect by overbearing conduct, such as badgering, cajoling, or importuning or other affirmative acts likely to induce a normally law-abiding person to commit a crime (Sec. 2268).  Entrapment may be effected by an unwitting agent of law enforcement officials (Sec. 2269). 

Aside form the defense of entrapment, sufficiently gross police misconduct could conceivably lead to a finding that conviction of the accused would violate his constitutional right to due process of the law (Sec. 2272).  Entrapment is an affirmative defense, and the defendant has the burden of proving it (Sec. 2273).  Failure to give entrapment instructions sua sponte constitutes a reversible error where substantial evidence to sustain the defense is offered or introduced (Sec. 2274).

Sec. 2267 In General; Test.

The test of entrapment in California is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding person to commit the offense.  Under this test, such matters as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant.

While the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum.  It should also be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand.  For purposes of the test, the presumption is that a law-abiding person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully.  Circumstances which may be relevant are the transactions preceding the offense, the gravity of the crime, and the difficulty of detecting instances of its commission.

This test differs form the federal standard which requires a showing that the defendant was not predisposed to commit the crime and from the hybrid standard, formerly used in California, which incorporated elements of both the subjective and objective theories of entrapment.

Although the defense is available to a defendant who is otherwise guilty, a defendant need not admit his guilt, or even commission of the act, to raise a defense of entrapment.  The defense of entrapment is a question for the jury, although in a rare case it may be show as a matter of law.

In accordance with the general rule that questions not raised in the trial court will not be considered on aeal, the defense of entrapment cannot be raised for the first time on aeal.

54. People v Benford, 53 C2d 1, 345 P2d 928; People v Perez, 62 C2d 769, 44 Cal Rptr 326, 401 P2d 934; People v McIntire, 22 C3d 742, 153 Cal Rptr 237, 591 P2d 527.

   The first duties of the officers of the law are to prevent, not to punish, crime.  It is not their duty to incite and create crime for the sole purpose of prosecuting and punishing it.  People v Makovsky, 3 C2d 366, 44 P2d 536.

Sec. 2268 Impermissible police conduct

Official conduct which does no more than offer the opportunity to act unlawfully, such as a decoy program, is permissible.  But it is impermissible for the police or their agents to pressure a suspect by overbearing conduct, such as badgering, cajoling, or importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.

Although the determination of what police conduct is impermissible must to some extent proceed on an ad hoc basis, guidance will generally be found in the alication of one of both of two principles.  First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established.  An example of such conduct would be an appeal by the police that would induce such a person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose...

There is no entrapment when official conduct is found to have gone no further than necessary to assure the suspect that he is not being set up.  The police remain free to take reasonable, though restrained, steps to gain the confidence of suspects.

Sec. 2269  Entrapment by one not a law enforcement officer

Entrapment may be effected by an unwitting agent of law enforcement officials.  Manipulation of a third party by law enforcement officers to procure the commission of a criminal offense by another renders the third party a government agent for purposes of the entrapment defense, even though a third party remains unaware of the law enforcement object.

Sec. 2272 Police misconduct as a violation of due process

The California Supreme Court has intimated that sufficiently gr   oss police misconduct could conceivably lead to a finding that conviction of the accused would violate his or her constitutional right to due process of the law.  The doctrine has been recognized, but not yet alied, by the United States Supreme Court.

The defense has been recognized and alied by lower federal courts.  In the federal courts, the defense is distinct from that of entrapment.  First, while entrapment presents a question of fact, this defense presents a question of law.  Second, under federal law this defense is available even though the defendant was predisposed to commit the crime.

California's entrapment standard, however, differs from the federal standard.  Thus, it has been stated that the defense of police misconduct so gross and outrageous as to constitute a violation of due process has little alication in California.  Since the purpose of the federal due process/outrageous conduct claim is the same as California's entrapment defense, that is, the deterrence of police misconduct, there would be few, if any, situations in which a due process violation would not also constitute entrapment.  As under the federal standard, entrapment is not a defense where the defendant has a demonstrated predisposition to commit the crime...

It has also been stated that, notwithstanding the obvious overlap, there may well be cases where police misconduct as to third persons would not fit within an entrapment framework but would nonetheless prevent a DEFENDANTS conviction on the grounds of fundamental fairness.

Sec 2274 Instructions

In accordance with the general rule, failure to give entrapment instructions sua sponte constitutes reversible error when substantial evidence to sustain the defense is offered or introduced.  Thus in a prosecution for selling heroin, where there was substantial evidence suortive of an entrapment defense, the trial court erred in failing to instruct the jury sua sponte on the defense of entrapment.

The defendant is entitled to the benefit of an instruction on entrapment, and it is prejudicial error to deny it, where the facts alleged, if true, are legally sufficient to justify the reasonable inference that he was the victim of an entrapment that precludes his conviction.  But where the evidence is insufficient, there is not error in a ruling by the trial court that refuses to consider such an instruction.

(As a duty to instruct sua sponte in criminal prosecutions generally, see Sec. 3049)

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