People v. Black

Filed 3/27/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S206928
v. )
) Ct. App. 1/1 A131693
CHARLES ALEX BLACK )
) Alameda County
Defendant and Appellant. ) Super. Ct. No. C163496
____________________________________)

During voir dire, the trial court denied defendant‘s challenges to two
prospective jurors on incompetence grounds (i.e., grounds that rendered them
removable for cause). Following those denials, defendant used two of his allotted
peremptory challenges to remove the same jurors. Defendant ultimately exhausted
his peremptory challenges. He then asked the trial court to grant him extra
peremptory challenges to remove two other prospective jurors he deemed
objectionable (i.e., jurors removable for lawful reasons other than for cause). The
trial court refused defendant‘s request. He now challenges the trial court‘s action
here, claiming he is entitled to reversal because one of the jurors he objected to sat
on his case.
We find that defendant cured any error that occurred when the trial court
denied his for-cause challenges because he removed those jurors with two
peremptory challenges. We also conclude that the trial court was under no
statutory obligation to grant defendant extra peremptory challenges to remove
additional, otherwise competent, jurors. Because no incompetent juror who
should have been dismissed for cause sat on his case as a result of his exhausting
his peremptory challenges, defendant is not entitled to reversal of the trial court‘s
judgment. (See People v. Yeoman (2003) 31 Cal.4th 93 (Yeoman).) We thus
affirm the Court of Appeal‘s judgment.

FACTS AND PROCEDURAL HISTORY
Defendant was charged by information with two counts of animal cruelty
(Pen. Code, § 597, subd. (a)) after his neighbors videotaped him severely beating
his pet pit bull, Blue, with a mop handle on June 30, 2009, and with an axe on
February 19, 2009. During jury voir dire at defendant‘s trial, Prospective Juror
M.P. indicated she was ―a very devout Hindu,‖ and was ―taught to not harm any
animals whatsoever.‖ Although she stated that she would ―try‖ to set aside her
beliefs, when asked if she could be ―completely impartial, unbiased,‖ she replied,
―[p]robably not for this particular case.‖ Prospective Juror A.D. indicated he had
been abused as a child and was concerned about his ability to act impartially. In
chambers, he told the court he ―already sided‖ with the prosecution ―because of
what happened today in the morning and at lunch.‖ Asked to explain, he said
defendant had been disrespectful by arriving late and ―singing and stomping his
feet‖ when he entered. The court denied defense counsel‘s challenges for cause to
the two prospective jurors, and defense counsel had to use two of his 10 allotted
1
peremptory challenges to remove them. (See Code Civ. Proc., § 231, subd. (a)
[allotting both noncapital defendants and the prosecution 10 peremptory
challenges per trial].)

1 Further statutory references are to the Code of Civil Procedure unless otherwise
specified.

2
 A third prospective juror who was later seated — Juror No. 8 — expressed
concern in a note to the court. In chambers, he explained he was a process server
who earlier that year had tried to serve an unlawful detainer summons on a
―Charles Black‖ at an Oakland Housing Authority building. However, because
that Charles Black was never at home, Juror No. 8 did not know if he was the
same person as defendant. He had served residents of the Oakland Housing
Authority over 100 times, but he remembered this attempt because he had a police
escort, which only occurred if ―guns and/or drugs were involved in the reason for
the eviction.‖ Juror No. 8 said he would ―try‖ not to let the incident affect his
consideration of the case. He promised not to disclose it to the other jurors. The
court denied defense counsel‘s initial request, made ―in an abundance of caution,‖
to excuse the juror for cause.2 Having earlier exhausted his peremptory
challenges, defense counsel requested two additional peremptory challenges to
replace the challenges he had used in excusing Prospective Jurors M.P. and A.D.,
so that he might remove Juror No. 8 and another unspecified juror whom
defendant does not discuss in his briefs. In denying defense counsel‘s request, the
court specifically noted that Juror No. 8 was ―conscientious.‖
The jury found defendant guilty of both animal cruelty counts, and in a
bifurcated proceeding found a prior strike and prior prison term allegations true.
The court sentenced defendant to four years: the 16-month lower term on the first
count, and eight months on the second count (one-third the midterm), both
doubled due to the prior strike. The court struck the prior prison term
enhancements.

2 It appears that defense counsel challenged Juror No. 8 for cause as a
precautionary measure. Defendant‘s briefing essentially concedes the juror was
not removable for cause.

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 In affirming the judgment, the Court of Appeal concluded that although the
trial court erred in its failure to remove Prospective Jurors M.P. and A.D. for
cause, it also found that the trial court‘s failure to grant defendant additional
peremptory challenges under the circumstances did not require reversal because he
failed to show that any incompetent juror sat on his case. We granted defendant‘s
petition for review.

DISCUSSION

Challenges for cause are constitutionally guaranteed under the Sixth
Amendment. (Ross v. Oklahoma (1988) 487 U.S. 81, 89 (Ross).) Our state
constitution provides the same general right to a fair trial and an impartial jury,
and the reasoning of Ross is applicable ―to the state constitutional analogues to the
federal constitutional rights considered there.‖ (People v. Gordon (1990) 50
Cal.3d 1223, 1248, fn. 4 (Gordon) [overruled on another ground in People v.
Edwards (1991) 54 Cal.3d 787, 855].) In California, criminal defendants are
allowed an unlimited number of challenges to prospective jurors for cause, which
the defendants must use before exercising any peremptory challenges. (§ 226.)
Our statutes set forth the requirements for successful challenges to jurors
for cause. Section 225, subdivision (b)(1) allows challenges for cause for ―one of
the following reasons: [¶] ―(A) General disqualification — that the juror is
disqualified from serving in the action on trial. [¶] (B) Implied bias — as, when
the existence of the facts as ascertained, in judgment of law disqualifies the juror,‖
or [¶] ―(C) Actual bias — the existence of a state of mind on the part of the juror
in reference to the case, or to any of the parties, which will prevent the juror from
acting with entire impartiality, and without prejudice to the substantial rights of
any party.‖ As relevant here, section 229, subdivision (f) states that a challenge
for cause for a prospective juror‘s bias addresses ―[t]he existence of a state of

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mind in the juror evincing enmity against, or bias towards, either party.‖ (See
People v. Horning (2004) 34 Cal.4th 871, 896.)
Although challenges for cause are constitutionally guaranteed, the right to
peremptory challenges is statutory. (Ross, supra, 487 U.S. at p. 89.) Ross held
that ―the fact that defendant had to use a peremptory challenge to [cure the court‘s
error in failing to remove a juror for cause] does not mean that the Sixth
Amendment was violated.‖ (Id. at p. 88.) ―[P]eremptory challenges are not of
constitutional dimension,‖ but are merely ―a means to achieve the end of an
impartial jury.‖ (Ibid.) Mere loss of a peremptory challenge does not
automatically constitute a violation of the federal constitutional right to a fair trial
and impartial jury. (Ibid.) If no biased or legally incompetent juror has served on
defendant‘s jury, the judgment against him does not suffer from a federal
constitutional infirmity, even if he had to exercise one or more peremptory
challenges to excuse prospective jurors whom the court should have excused for
cause. (Id. at pp. 88-91.)
Over a century ago, we stated that the right to exercise peremptory
challenges was ―absolute,‖ such that when a defendant is compelled to exhaust the
allotment of peremptory challenges because of the erroneous denial of a for-cause
challenge and is thereby ―obliged afterward to accept an objectionable juror,
without power to use a peremptory challenge upon him, . . . the error [is]
prejudicial.‖ (People v. Helm (1907) 152 Cal. 532, 535.) However, our
understanding of the purpose of peremptory challenges has since evolved, in
accordance with the high court‘s observations in Ross, supra, 487 U.S. at pages 88
to 91, to acknowledge that the statutory right to peremptory challenges is ―subject
to the requirement that the defendant exercise those challenges to cure erroneous
refusals to excuse prospective jurors for cause.‖ (Gordon, supra, 50 Cal.3d at p.
1248, fn. 4.) As a result, our case law now reflects that an erroneous denial of a

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challenge for cause to one juror is not reversible error when it deprives a defendant
only of a peremptory challenge to another juror. (People v. Whalen (2013) 56
Cal.4th 1, 44; Yeoman, supra, 31 Cal.4th at p. 114; People v. Boyette (2002) 29
Cal.4th 381, 419; People v. Mickey (1991) 54 Cal.3d 612, 683.) ― ‗So long as the
jury that sits is impartial, the fact that the defendant had to use a peremptory
challenge to achieve that result does not mean‘ ‖ a constitutional violation
occurred. (People v. Farley (2009) 46 Cal.4th 1053, 1096.)
The Attorney General does not defend the trial court‘s decisions on the for-
cause challenges to Prospective Jurors M.P. and A.D., and does not attempt to
refute defendant‘s claim that the trial court should have granted his for-cause
challenges to those jurors. We therefore assume that the trial court erred in not
granting defendant‘s for-cause challenges to the two prospective jurors. We also
find that defendant cured the error by using two of his statutory peremptory
challenges to strike the prospective jurors. Eventually, defendant exhausted his
remaining challenges and was consequently unable to remove Juror No. 8, whom
he agrees was not challengeable for cause, but whom he personally found
objectionable for other lawful reasons.
According to defendant, the Legislature has deemed peremptory challenges
essential for the creation of an impartial jury. The loss of peremptory challenges
necessarily undermines that goal when counsel identifies an objectionable juror
who counsel was unable to remove. He further contends that he is statutorily
entitled to ―mold the jury‖ using the full complement of peremptory challenges
that the statute affords. Without citation to authority or Legislative intent
materials, defendant claims that denial of such an entitlement is reversible per se.
Defendant has preserved his claim for appeal because he exhausted his peremptory
challenges, declared his dissatisfaction with the jury as finally constituted, and
requested additional challenges. (See People v. Kirkpatrick (1994) 7 Cal.4th 988,

6
1005 [―To preserve a claim of error in the denial of a challenge for cause, the
defense must either exhaust its peremptory challenges and object to the jury as
finally constituted or justify the failure to do so.‖].)
The Attorney General contends, and the Court of Appeal agreed, that
forcing defendant to use peremptory challenges to remove Prospective Jurors
M.D. and A.D. violated his right to a fair trial and impartial jury only if he was left
unable to prevent the seating of another otherwise incompetent juror (i.e., one who
should have been removed for cause). Because defendant does not contend that
Juror No. 8 should have been removed for cause, the Attorney General argues that
defendant has failed to demonstrate reversible error.
The Attorney General cites to a substantial line of authority that supports
her argument. In Yeoman, supra, 31 Cal.4th at page 114, this court clarified the
rule for determining when a defendant suffers prejudice if he must exhaust his
peremptory challenges in order to remove jurors who should have been removed
for cause. The defendant had been charged with capital murder. He argued that
―the trial court had deprived him of due process and a fair trial by denying‖ his
for-cause challenges to four prospective jurors. (Ibid.) None of the jurors sat on
defendant‘s case because he peremptorily challenged each one. (Ibid.)
―Defendant eventually exhausted his peremptory challenges and expressed
dissatisfaction with the jury,‖ thus preserving his claim on appeal. (Ibid.) Yeoman
relied on Ross, supra, 487 U.S. at pages 85-86, and our earlier cases to observe
that ―[t]o prevail on such a claim, defendant must demonstrate that the court‘s
rulings affected his right to a fair and impartial jury. [Citation.] None of the four
prospective jurors could possibly have affected the jury‘s fairness because none
sat on the jury. [Citations.] The harm to defendant, if any, was in being required
to use four peremptory challenges to cure what he perceived as the trial court‘s
error. Yet peremptory challenges are given to defendants subject to the

7
requirement that they be used for this purpose. (People v. Gordon, [supra,] 50
Cal.3d [at p.] 1248, fn. 4.)‖ (Yeoman, supra, 31 Cal.4th at p. 114.) The court
concluded that ―[a]n erroneous ruling that forces a defendant to use a peremptory
challenge, and thus leaves him unable to exclude a juror who actually sits on his
case, provides grounds for reversal only if the defendant ‗can actually show that
his right to an impartial jury was affected . . . .‘ [Citation.]‖ (Ibid., italics omitted.)
Numerous recent cases support Yeoman‘s holding. (See, e.g., People v. Edwards
(2013) 57 Cal.4th 658, 753 [―even assuming the trial court erred in denying the
challenge for cause, defendant does not claim that any sitting juror was biased‖].)
A few cases have relied on dictum from People v. Bittaker (1980) 48
Cal.3d 1046 (Bittaker), which posited the idea that a defendant‘s right to a fair trial
and impartial jury is denied even if no incompetent juror sits on the case. In
Bittaker, the defendant was charged with capital murder. He claimed that he was
deprived of his right to an impartial jury because he used peremptory challenges to
remove five prospective jurors who should have been excused for cause but were
not. The trial court granted the defendant only two compensatory peremptory
challenges, which he used. (Id. at p. 1087.) The trial court also gave the
prosecution two additional challenges, which it requested but did not use. (Ibid.)
Bittaker argued on appeal that the trial court deprived him of his right to an
impartial jury because it required him to use peremptory challenges to remove the
five prospective jurors it should have removed for cause. He claimed that ―a
single erroneous denial of a challenge for cause requires reversal.‖ (Ibid.)
In Bittaker we affirmed the defendant‘s conviction, but noted in dictum that
―if he can actually show that his right to an impartial jury was affected because he
was deprived of a peremptory challenge which he would have used to excuse a
juror who sat on his case, he is entitled to reversal . . . .‖ (Bittaker, supra, 48
Cal.3d at pp. 1087-1088.) The dictum has been interpreted to mean that, ―if the

8
defendant can show that he was required to use his peremptory challenges to
remove jurors as to whom the trial court erroneously denied a challenge for cause,
and that he exhausted his peremptory challenges and thus was unable to excuse
one or more jurors who sat on his case, his right to an impartial jury necessarily
was affected and he is entitled to reversal.‖ (People v. Baldwin (2010) 189
Cal.App.4th 991, 999-1000.) But we have never reversed a case based on
Bittaker‘s dictum. (Baldwin, supra, 189 Cal.App.4th at p. 1000.) We therefore
reject the Bittaker dictum in our own cases that cite it, and now conclude that it
has no applicability in a determination whether a defendant has been prejudiced by
a denial of a for-cause challenge. (Bittaker, supra, 48 Cal.3d at p. 1087; see, e.g.,
People v. Blair (2005) 36 Cal.4th 686, 742 [citing Bittaker dictum to note that a
defendant may establish prejudice if he can show he was ―deprived of a
peremptory challenge‖ that he would have used to excuse a juror who participated
in the case]; see also People v. Lewis (2008) 43 Cal.4th 415, 495 [quoting Blair‘s
citation to Bittaker‘s dictum]; People v. Hoyos (2007) 41 Cal.4th 872, 905, fn. 18
[same].) 3
We conclude that Yeoman sets forth the correct standard for a defendant to
demonstrate prejudice after properly preserving a claim that the defense used
peremptory challenges to cure a trial court‘s erroneous denial of one or more for-
cause challenges. A defendant must show that the error affected his right to a fair
trial and impartial jury. When a defendant uses peremptory challenges to excuse
prospective jurors who should have been removed for cause, a defendant‘s right to

3 We also note that Bittaker held that a defendant must show that ―he used a
peremptory challenge to remove the juror in question, that he exhausted his
peremptory challenges‖ or ― can justify his failure to do so,‖ ―and that he was
dissatisfied with the jury as selected.‖ (Bittaker, supra, 48 Cal.3d at p. 1087.)
This quoted language, however, defined the prerequisites for preserving the claim
of error in the denial of a for-cause juror challenge, not for prevailing on it. (See
People v. Bivert (2011) 52 Cal.4th 96, 114.)

9
an impartial jury is affected only when he exhausts his peremptory challenges and
an incompetent juror, meaning a juror who should have been removed for cause,
sits on the jury that decides the case. (Yeoman, supra, 31 Cal.4th at p. 114.)
Defendant cites cases from several sister-state courts that have held, as a
matter of state law, and assuming defendants have not forfeited their claims on
procedural grounds, that trial courts commit prejudicial error when they force
defendants to use peremptory challenges to excuse prospective jurors who should
have been removed for cause, provided the defendants have exhausted all their
peremptory challenges and have sought additional challenges that were denied.
(See e.g., State v. Esposito (Conn. 1992) 613 A.2d 242, 250 (Esposito).) Like
defendant, these cases deem the erroneous denial of a for-cause challenge to be
prejudicial if an objectionable juror was seated. Their rule is similar to the
Bittaker dictum we reject.
For example, in Esposito, supra, 613 A.2d at page 250, the Connecticut
Supreme Court reversed the defendant‘s conviction after concluding that the trial
court committed reversible error when it denied one of the defendant‘s for-cause
challenges. Defendant thereafter used a peremptory challenge to remove that
biased juror. Esposito noted that ―the Connecticut Constitution guarantees a
criminal defendant the right to exercise peremptory challenges in the selection of
his jury,‖ and ―that the trial court‘s action abridged this constitutional and
statutory right of the defendant.‖ (Id. at p. 249.) The court concluded that it is
reversible error for a trial court to force a defendant to use peremptory challenges
to excuse persons who should have been removed for cause, as long as the
defendant subsequently exhausts all of his peremptory challenges and seeks an
additional challenge that is denied. (Id. at pp. 249-250.) Defendant claims the
Esposito rule ―gives due deference to the importance of peremptory challenges in
our judicial system‖ and ―ensures that a trial court‘s error does not deprive a

10
defendant of the full use of the peremptory challenges allotted him by law.‖ As
we have held, however, California law rejects this rule. (Yeoman, supra, 31
Cal.4th at p. 114.) In our view, the fact that defendant requested additional
peremptory challenges that the court did not grant him does not support his claim,
because he has failed to show that an incompetent juror sat on his case.
Defendant also contends that his proposed rule would be consonant with
the Legislature‘s intent because peremptory challenges are ―creatures of statute.‖
Defendant argues that the trial court‘s rejection of his request for additional
peremptory challenges was akin to erroneously denying him ―the use of his full
panoply of peremptory challenges,‖ and thus it warrants reversal. (See e.g.,
People v. Armendariz (1984) 37 Cal.3d 573, 584 (Armendariz) [failure to grant a
defendant the prescribed number of peremptory challenges is reversible error];
accord, People v. O’Connor (1927) 81 Cal.App.506, 517-519 [denial of statutory
allotment of peremptory challenges represents a miscarriage of justice under
California law].)
As the Attorney General observes, however, we can distinguish the rule in
Armendariz, supra, 37 Cal.3d at pages 584. There, the court failed to allow the
defendant to exercise his statutorily allotted number of peremptory challenges. (Id.
at pp. 582-583.) By contrast, defendant (and the prosecution) in this case were
each given the 10 peremptory challenges statutorily prescribed in noncapital
criminal cases. (§ 231, subd. (a).) A defendant‘s statutory right to the full
complement of peremptory challenges ―is not denied or impaired when the
defendant chooses to use a peremptory challenge to remove a juror who should
have been removed for cause.‖ (United States v. Martinez-Salazar (2000) 528
U.S. 304, 316-317; Id. at p. 315 [trial court may not deliberately (or repeatedly)
force defendants to use peremptory challenges to cure trial court errors, but using
peremptory challenge to remove prospective juror who should have been removed

11
for cause does not deprive defendant of allotted number of peremptory challenges
provided by Fed. Rules Crim. Proc., rule 24(b) (18 U.S.C.)].) By parity of
reasoning, when a defendant receives the peremptory challenges allotted to him,
but must use one or more of those challenges to cure an erroneous denial of a
challenge for cause, he has received what was due him under state law and cannot
object to the jury unless an incompetent juror sat in his case. (Yeoman, supra, 31
Cal.th at p. 114.)
CONCLUSION

The record does not show, and defendant does not contend, that Juror No. 8
was biased and removable for cause. (Cal. Const., art. VI, § 13.) This juror was
not subject to removal for any other qualitative reason that would render his sitting
in defendant‘s trial unfair or inconsistent with impartiality. The fact that the trial
court refused defendant‘s request for an additional challenge to remove that same
juror is not reversible error.
We affirm the Court of Appeal‘s judgment.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.

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 CONCURRING OPINION BY LIU, J.

Whatever the merits of peremptory challenges as a mechanism of jury
selection (compare Swain v. Alabama (1965) 380 U.S. 202, 219 [noting ―the long
and widely held belief that peremptory challenge is a necessary part of trial by
jury‖] with Miller-El v. Dretke (2005) 545 U.S. 231, 272 (conc. opn. of Breyer, J.)
[urging abolition of peremptory challenges and stating ―a jury system without
peremptories is no longer unthinkable‖] and Batson v. Kentucky (1986) 476 U.S.
79, 102–103 (conc. opn. of Marshall, J.) [same]), it cannot be denied that a
significant diminution of opportunities to exercise lawful peremptory strikes is
problematic if it affects only the defense in a criminal trial.
Under former Penal Code section 1070, a defendant charged with a crime
punishable by death or life without parole was entitled to 10 peremptory
challenges, whereas the state was entitled to five. (Penal Code of Cal. (1872)
p. 241, § 1070; see ibid. [allotting five strikes for the defendant and three for the
state on other offenses].) California law now provides the defense and the
prosecution with an equal number of peremptory strikes. (Code Civ. Proc., § 231,
subd. (a).) Suppose a defendant had to use five peremptory strikes to excuse
jurors who should have been excused for cause and then, upon exhausting his
strikes, was forced to accept five jurors he otherwise would have struck for lawful
reasons short of cause. Suppose further that the prosecution did not have to use
any of its peremptory strikes in this manner and instead used all 10 of its strikes to
1
remove jurors it found unfavorable for lawful reasons short of cause. In such a
scenario, it is clear that the defendant was substantially disadvantaged relative to
the prosecution, and it would be difficult to argue that such imbalance is consistent
with the purpose of section 231, subdivision (a) or with due process of law.
Therefore, prejudice may occur when a trial court has erroneously denied
multiple challenges for cause by the defense but not by the prosecution, thereby
forcing the defendant, but not the prosecution, to accept multiple jurors whom he
would have lawfully struck had he not had to use his strikes to remedy the trial
court‘s errors. In other words, our prejudice inquiry should examine whether a
trial court‘s errors substantially disadvantaged the defendant relative to the
prosecution in the opportunity to remove jurors for lawful reasons short of cause.
Today‘s opinion does not hold to the contrary. (See maj. opn., ante, at p. 11
[construing United States v. Martinez-Salazar (2000) 528 U.S. 304, 315 to mean
that a ―trial court may not deliberately (or repeatedly) force defendants to use
peremptory challenges to cure trial court errors‖], italics added.)
A defendant cannot be said to have suffered substantial disadvantage with
respect to the prosecution from the seating of a single objectionable juror. Neither
the prosecution nor the defense has the right to an ideal jury, and both sides must
sometimes accept less-than-ideal jurors given the limitations of the jury pool and
available peremptory strikes. In the present case, the record reveals only one
seated juror whom defendant would have peremptorily challenged. Because
defendant suffered no substantial disadvantage in jury selection relative to the
prosecution, I concur in the court‘s judgment.

LIU, J.

I CONCUR: KENNARD, J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Black
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 10/25/12 – 1st Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S206928
Date Filed: March 27, 2014
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: Allan D. Hymer

__________________________________________________________________________________

Counsel:

Robert L. S. Angres, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, René A. Chacón and Bruce Ortega, Deputy Attorneys General, for Plaintiff
and Respondent.

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

Robert L. S. Angres
4781 E. Gettysburg Avenue, Suite 14
Fresno, CA 93726
(559) 348-1918

Bruce Ortega
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1335

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