P v. Superior Ct. (Lara) (4th Dist., Div2) Application of Prop 57 to a Direct-File Case Currently Pending Trial Is Proper.

Prior to the November 9, 2016, inaction of Proposition 57, in certain situations, the State could choose to charge juvenile crimes in adult court.  It needed no judicial permission to do so.  Beginning on November 9, 2016, this changed.  The portions of Proposition 57 relevant for our purposes require all juvenile crimes to be commenced in juvenile court.  Once commenced in juvenile court, a juvenile case may be transferred to adult court, but it is the juvenile judge, not the State, that gets to make the decision.

March 2, 2016, the State charged one Master Lara as an adult for crimes he allegedly committed as a juvenile.  At the time, this was allowed.  While Lara was awaiting his trial in adult court, the voters passed Proposition 57.  On November 29, 2016, Lara moved the adult court to send his case to the juvenile court pursuant to Proposition 57.  The adult court granted Lara's motion and ordered the case transferred to juvenile court whereupon, if it wished, the State could ask the juvenile judge to make a decision as to in which court Lara's case should be tried.  The State filed a writ petition in the Court of Appeal.

The Fourth District denies the State's petition.

The intelligence of this decision is evinced by how the panel frames the question.  Whenever a voter initiative results in a change in the criminal law, lawyers tend to reflexively frame every contested issue of application as "whether the changes were meant to be retroactive".  As the panel here demonstrates, the proper analysis starts with whether the application at issue is one properly characterized as retroactive.  Because a change in the law is applied to a case commenced prior to the change does not necessarily mean the application is retroactive.

Having framed the issue correctly, the panel examines the relevant case law.  In an analogous case involving a change in the rules governing jury selection, the Court of Appeal held that the new rules applied to trials commencing after the rules change, even if the case had commenced prior to the changes.   Such an application was not retroactive, rather it was prospective.  Here too, holds the panel, the relevant parts of Proposition 57 address the conduct of trials commencing after the law change.  Proposition 57 says that the location of the trial, adult court or juvenile court, must be determined by the juvenile judge, not the State.  Applying this new law to Lara's case does not constitute an act of retroactivity.

The State tries to get around this conclusion by relying the the following citation from P v. Grant.

In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date.

This citation doesn't help the State that much.  Firstly because the panel doesn't think the facts here satisfy the conditions.  Secondly, the cited rule isn't necessarily determinative.  The phrase "only if" is a conditional statement, not biconditional.  In other words, for an application to be retroactive, the latter portion of the statement must always be true.  This is not the same as saying if the latter portion of the statement is true, the application is always retroactive.  The word "only" makes the difference.

The upshot is that Lara's case will now go to the juvenile court to have the juvenile judge make the decision as to in what court Lara will have his trial.

P v. Lopez (2nd Dist, Div.6) Sentence Enhancement HS 11370.2 Unaffected By 2013 Amendment to HS 11379

Mr. Lopez was pulled over for failing to signal.  He was found to have a stash of methamphetamine, a decent-sized wad of cash, a scale, and a cache of small plastic baggies.  Lopez admitted to the cops he was selling.  "I sell meth because I am living on the street, and I have to make money."

A jury convicted Lopez of possession for sale, HS 11378, and transportation, HS 11379.  Lopez admitted having two prior convictions for transportation.  He was given a total of fifteen years in prison.  Six of the fifteen years came from two three-year enhancements under 11370.2 which adds three years for each prior HS 11379.  Lopez appealed.

The Second District affirms.

The opinion resolves two main issues.  The first issue, whether the trial court's instructional error requires reversal, is resolved convincingly.  The second issue, whether a recent amendment to HS 11379 impacts the enhancement under 11370.2, is never really resolved, though the sentence is affirmed.  To paraphrase a famous film line, the analysis of the second issues ends not with a bang, but a whimper.

Both issues revolve around 11379, the "transportation" charge.  Prior to 2014, (thanks to the erudition of the California Supreme Court of the early 70s) a person was guilty of transportation of methamphetamine simply by possessing some quantity of meth and then moving, however small a distance.  When a junkie took a rock from his pocket to put it in his pipe, that was a transportation.  When the same junkie, with a dime bag in his jeans, rolled over in bed, that was a transportation.  A prosecutor whom I admire, possessing a wry sense of humor, once opined he could obtain a transportation conviction based upon the rotation of the earth since the statute didn't specify a relevant inertial frameset.

Thankfully, in 2014, the legislature changed 11379 to require that the transportation of meth be for the purpose of sale, no doubt the original intent.  The trial judge in Lopez's case, however, instructed the jury on the old statute, which did not require the sales intent.  This was clearly error, however because the jury necessarily found Lopez guilty of possessing the same drugs for sale in its 11378 (possession for sale) verdict, the error was harmless.

The second issue was the 1170.2 enhancement.  Section 1170.2 adds three years for each prior conviction for sales-related charges, save 11379 prior to 2013.  Lopez argues that his 11379 convictions shouldn't count now, due to the recent amendment to 11379.  The panel here "turns yella" and never really addresses the issue.  It states that when lawmakers enact statutes that reference existing statutes, it the version of the referenced statute in effect at the time of the inaction that controls (which cuts against Lopez).  But then it goes on to examine the legislative history of 11370.2 which states an intent to punish those engaged in the selling of narcotics (which cuts for Lopez).  In the end the panel never really states a useful rule.  Rather it states that the record is ambiguous as to whether Lopez's prior 11379 convictions were sales-related and affirms.

So which is it?  Does the legislative history of 11370.2 require prior transportation cases to be sales-related, or just a junkie who rolls over in bed?

P v. Macabeo (Cal. Supremes) Searches Incident to Arrest Require an Arrest

Mr. Macabeo was riding a bicycle when he rolled through a stop sign.  Apparently having already shot all the fish in its barrel, the Torrance police stopped Macabeo and began to grill him about his criminal record and probation status.

After he told the police he was not on probation, the officers had Macabeo "assume the position" and patted him down, finding nothing.  Macabeo agreed to let the police empty his pockets and a mobile phone was removed.  

Macabeo was then ordered to sit on the curb and remove his shoes before putting his hands upon his head.  He asked if he was under arrest.  The policeman said, "I'll explain everything in a second.  Do not stand up; you don't want to do that."  The policeman's "second" turned into about 10 minutes while another policeman went through Macabeo's phone, finding photographs of underage girls.  Macebeo was then arrested for possessing pornography involving persons under 18.  

Macabeo moved to suppress the evidence of the photographs on the ground they were obtained via a search conducted in violation of the Fourth Amendment.  The trial court denied the motion because, even though Macabeo had not been arrested, the police could have arrested him for rolling through the stop sign.  The trial court held that any time the police have probable cause to arrest someone, all of the liberty intrusions justified by a custodial arrest are fair game for the government.  

The California Supreme Court reverses and remands for the trial court to order the photographs suppressed.

While the opinion, by necessity, addresses numerous issues, including the retroactive effect of Riley v California, the most important aspect of the opinion is the holding that the "search incident to arrest" exception to the warrant requirement is only applicable when an actual custodial arrest is made.  In other words, the liberty intrusions attendant to a search incident to arrest are justified by governmental interests created by the arrest.  When there is no actual arrest, these government interests are not present, and no justification for the intrusions exists.  

Senator (nee Attorney General) Harris tries to make a game of the Fourth Amendment, arguing that government intrusions into individuals' Constitutionally protected interests should be reduced to a theoretical algorithm weighted in favor of the government.  The California Supreme Court wisely rejects such tosh.  The results of Harris' position would have been dangerously absurd.  

Under Harris' interpretation of the Fourth Amendment, if you were seen jaywalking, the police could, without violating the Constitution, stop you, have you sit on the curb for 48 hours while officers take turns grilling and searching you.  They could also take you into the police car and make you strip naked while they checked your orifices for weapons and drugs.  After this two day humiliation was complete, the police could then give you a warning for jaywalking and tell you to enjoy the rest of your week.  And this would all be Constitutional under Harris' Constitution.

Her reasoning is as follows.  Because the police could have, Constitutionally, arrested you for jaywalking, they then could have searched you incident to arrest and questioned you before taking you to the county jail.  Upon arriving at the jail, they could strip search you before placing you into general population.  And they could then keep you locked up for 48 hours before having to take you before a Magistrate where you could plead for your release.  All this would not violate the Constitution, says the United States Supreme Court.  

Sen. Harris argues that the government should be able to do all of this without having to actually arrest you.  In her Constitution, these government intrusions need not be justified by the existence of actual government interests, rather an individual gives up all rights against such intrusions whenever there is probable cause of any law violation.  Such an interpretation is malefic.

Luckily for Californians, our Supreme Court agrees with me.  

P v. Mendoza (2nd Dist, Div.6) Granting a PC 1170.18 Petition Confers The Right To Resentence on any Component of an Aggregate Term

(A parenthetical to the title would read: appellate court recognizes the right of insecure and cynical trial judges to indulge in schadenfreude to assuage their disappointment at having their power curtailed.)

Prior to 2014, Mr. Mendoza was sentenced on two felony cases.  In the first case, the principal sentence, he was effectively sentenced to 7 years, 8 months.  The first case had three counts.  On count one, the sentence was 32 months plus a five year enhancement.  The sentences on counts two and three were 4 years, 8 months each count, to run concurrent.

In case number two, the subordinate sentence, the court imposed 16 months on the sole count, to run consecutive to case number one.  The total effective sentence was nine years.  

Four years on, the trial court granted Mendoza's petition under PC 1170.18 to reduce his conviction in case number two to a misdemeanor, with a maximum sentence of 12 months.  The effect was to reduce Mendoza's sentence from 9 years to 8 years, 8 months.  However, this reduction offended the trial judge.  So she resentenced Mendoza on case number one, increasing the sentence from 7 years 8 months to 9 years (meaning the total new sentence was 10 years).  Mendoza appeals.

The Second District affirms the ability of the trial court to resentence Mendoza on the primary sentence, despite it being unaffected by the PC 1170.18 petition (though it does reduce the effective sentence back to nine years).  The reasoning provides no succor to the intellectually hungry reader.  The sole justification is a citation to a banal aphorism contained within a decision of the same district on a different issue.  The true legal issue is by what mechanism a trial court regains jurisdiction over a case unaffected by a 1170.18 petition.  The reader will have to wait for a more capable panel (or court) to answer this question.

The real motivation behind all this nonsense is the insecurity that government job-holders feel when power, which they've acquired via fiat rather than individual merit, is curtailed (by fiat).  The trial judge here is one Patricia Murphy.  I have never appeared in Ventura's superior court, nor do I know anything about the Honorable Judge Murphy, but if I had to guess, I'd say she is a former prosecutor who ascended to the bench via a political appointment (likely by a Republican governor).  

P v. Wilson (3rd Dist) Enhancement Limitation in PC 1170.1(g) Doesn't Proscribe Imposition of PC 667(a)(1) Enhancement In Addition to a PC 12022.7 Enhancement

Mr. Wilson got drunk and drove a car into a house.  Wilson's brother was riding shotgun and suffered a broken leg and collapsed lung.  

Wilson was convicted of a DUI causing injury, along with an enhancement under PC 12022.7 for causing great bodily injury (GBI) to his brother.  The 12022.7 enhancement converted the DUI charge into a serious felony.  Wilson had suffered a prior conviction for attempted robbery, also a serious felony.  

Come sentencing, the trial court imposed a three year sentence for the DUI charge.  This was doubled due to the prior serious felony.  Three years was added for the 12022.7 (GBI) enhancement.  Lastly, a five year enhancement was imposed under PC 667(a)(1), a section that adds five years when a defendant with a prior serious felony commits a new serious felony.  The total sentence was 14 years.  Wilson appealed the sentence.

The Third District affirms.

The issue is whether it was permissible for the trial court to impose both the 12022.7 GBI enhancement and the 667(a)(1) enhancement.  This issue arises due to PC 1170.1(g), which states in pertinent part that,

[w]hen two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. 

Wilson argues the trial court erroneous imposed two enhancements for his infliction of GBI upon his brother: [1] the 12022.7 enhancement for causing GBI, and [2] the 667(a)(1) enhancement for having a prior serious felony conviction (attempted robbery) and committing a new serious felony  (DUI w/GBI).  The argument is premised upon the fact that the present DUI w/injury offense only became a serious felony triggering the 667(a)(1) enhancement due to the GBI enhancement.  

The panel rejects this argument.  The result is probably correct, but the panel takes an intellectual shortcut that leaves a bad taste in my mouth.  The holding is that the 667(a)(1) enhancement does not punish Wilson for the present offense, but only punishes him as a recidivist.  This is half-true.  Section 667(a)(1) does not apply to every defendant with a prior conviction for a serious felony, rather it only applies to defendants with prior serious felony convictions who go on to commit a subsequent serious felony.  Since the infliction of GBI in the present case is a but-for cause of the 667(a)(1) enhancement, it is dishonest to state that the fact Wilson caused GBI to his brother is not part of the legal basis for the 667(a)(1) enhancement.  

It is more accurate to state that Wilson's 667(a)(1) enhancement is partially due to his status as a recidivist and partially due to his infliction of GBI upon his brother.  But admitting this truth would have created additional work for the panel in order for it to arrive at the chosen result.  And apparently it could not be bothered.  

P v. Learnard (2nd Dist, Div.1) Prior Strike Finding For Former PC 245(a)(1) Conviction Reversed For Insufficient Evidence

Mr. Learnard was charged with, and convicted of assault with a deadly weapon, a "strike" offense under California law.  Additionally, the jury found Learnard had two previous felony convictions.  The trial court found both of Learnard's two prior felonies were "strike" offenses and accordingly sentenced Learnard to 35 years to life.  Learnard appealed.

The Second District reverses the trial court's finding as to one of the prior felony convictions and remands for resentencing.

The prior felony conviction at issue is for violating former Penal Code section 245(a)(1).  At the time of Learnard's conviction, 245(a)(1) was a divisible statute that proscribed "assault with a deadly weapon or by any means of force likely to cause great bodily injury [GBI]".  Since felony assault with a deadly weapon is a "strike" offense while felony "assault by any means of force likely to cause [GBI]" is not a strike, simply knowing someone has a prior felony 245(a)(1) conviction isn't dispositive.  So the issue here is whether the evidence in front of the trial judge was sufficient for it to have found that Learnard's 245(a)(1) was for an assault with a deadly weapon.

In such cases, the court is permitted to examine the "record of conviction" and determine whether the record evinces which of the two types of assault the defendant committed.  Here the State introduced four items from the record in Learnard's previous 245(a)(1) conviction:  [1] the abstract of judgment, [2] the information to which he pleaded, [3] the transcript of the preliminary examination, and [4] a preconviction report from the probation department.  

Both the abstract of judgment and the information describe Learnard's offense as assault "with a deadly weapon, to wit, baseball bat, and by means of force likely to produce great bodily injury."  The preliminary examination transcript showed the victim testified that Learnard hit the victim with a baseball bat and grabbed him by the hands and tried to tear the victim out of the car.  The probation report, citing the police report, describes an assault with a baseball bat.  

As to the first two documents, the panel finds it a wash.  Because the allegation is stated in the conjunctive, it provides no evidence either way as to which theory Learnard pleaded.  The preliminary hearing is also inconclusive.  It provides evidence to support an assault with a deadly weapon (hitting with the bat) and also evidence to support an assault by means of force (putting hands on the victim).  As the reviewing court is prohibited from resolving factual issues, the preliminary examination transcript cannot be said to constitute substantial evidence.

Finally, the probation report is found to have no relevance in determining the basis of the conviction as it is simply inadmissible hearsay plucked from a police report.  In sum, since all of the relevant documents were ambiguous as to which type of assault Learnard pleaded, there was insufficient evidence to support the trial court's finding, and the case is remanded for resentencing.

By my calculation, Learnard's sentence should go from 35-life to 13 years.

[As an aside, 245(a)(1) is no longer a divisible statute.  The two types of assaults were separated; 245(a)(1) is now assault with a deadly weapon, while assault by force likely to cause GBI is now 245(a)(4).]

P v. Chenelle (1st Dist, Div. 1) Battery Is Not a Necessarily Included Lesser Offense of Lewd Acts on a Dependent Adult

Mr. Chenelle, who worked at an adult day care center, was accused of fondling the penis of a mentally and physically disabled client.  Chenelle was charged with violating Penal Code section 288(c)(2), committing a lewd act on a dependent adult while acting as a caretaker.  A jury convicted Chenelle and he appealed, arguing that the trial judge erred in not instructing the jury on the offense of misdemeanor battery, Penal Code section 242.

The First District affirms.

The threshold issue in this case is whether battery is a necessarily included lesser offense of 288(c)(2).  A trial judge must instruct on a necessarily included lesser offense if (a) there is substantial evidence the defendant is guilty on of the lesser.  The applicable test used to be whether the statutory elements of the greater offense include all the elements of the lesser offense.  The elements of 288(c)(2) being:

[1] the defendant was a caretaker of a dependent person;
[2] the defendant, while serving as caretaker, wilfully committed a lewd or lascivious act on that person; and,
[3] the defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the dependent person.

And the elements of 242, battery, being:

[1] the defendant willfully and unlawfully touched a person; and,
[2] the touching was done in a harmful or offensive manner.

Under this test, I would find that 288(c)(2) does not necessarily include all the elements of 242 because 288(c)(2) does not require the act (touching) to be offensive or harmful to the victim.  As I read the statutes, even if a dependent person desired sexual contact with a caretaker and was happy and satisfied to have received it while a charge of the caretaker, the elements of 288(c)(2) would still be satisfied.  

But alas, the case is not that simple.  During a period when the California Supreme Court's capacity for scholarship and pragmatism was at a nadir, Justice Chin penned his absurd opinion in the case of P v. Shockley.  Shockley dealt with an analogous issue of whether battery was a necessarily included lesser offense of lewd conduct on a minor under 14. As he is wont to do, rather than apply a recognized legal rule honed by years of experience and examination, Justice Chin creates his own tautological legal standard, and in doing so injects some unneeded novelty into the mix. 

Justice Chin's new "test" involves examining whether the "same evidence is required to support all elements of both offenses".  If so, then neither offense is a lesser of the other.  This is really nothing more than an unnecessary restatement of the question of whether substantial evidence exists that the defendant is guilty of only the lesser (the secondary requirement for the duty to instruct on a lesser).  Admirably, the panel here tacitly points out this fact and after applying Justice Chin's Delphic rule, finds that even if 242 is a necessarily included lesser offense, here there was no substantial evidence Chenelle was guilty of only the lesser.