Master K.R. was facing a WI 602 petition as well as a WI 707 petition. While in front of one Judge Sapunor, K.R. and the prosecutor negotiated a disposition whereby K.R. would enter admissions on the condition that at the time of disposition, K.R. would be released from juvie and get on a plane to Las Vegas, to live with his mother. K.R. entered his admission and Judge Sapunor continued the case for K.R. to get a plane ticket and for the probation department to prepare the necessary paperwork to transfer K.R.'s case to Nevada.
When K.R. returned to court for his disposition, one Judge Arguelles was on the bench. Arguelles didn't like the proposed the disposition and instead intended to sent K.R. to California's Department of Juvenile Facilities.
K.R. understandably wanted to wait for Judge Sapunor to return so that K.R. could receive the disposition to which he, the prosecutor, and the probation department, had agreed was in K.R.'s best interest. K.R. asserted he had a right, under People v Arbuckle., to have the judge that took his conditional admission, Judge Sapunor, preside over his disposition. Judge Arguelles disagreed and K.R. filed a writ petition.
The Third District denies the petition holding that the right to have the judge who accepts a negotiated plea/admission in a criminal/juvenile matter (Arbuckle right) is not a default right of a negotiated plea. Rather an Arbuckle right only arises if it is explicitly made a part of the negotiated disposition or if the judge who accepts the negotiated plea uses first-person pronouns during the proceedings that indicates to the defendant/ward an intent for that judge to preside at the sentencing.
The analysis in this opinion consists of examining case law to determine whether the California Supreme Court's decisions stand for the proposition that an Arbuckle right is created by default in every negotiated disposition or whether an Arbuckle right is created is dependent on the particular facts in each case. The panel concludes the latter, and while they acknowledge that for years many other appellate courts and most trial courts have operated under the assumption an Arbuckle right is created in every negotiated disposition, they believe their analysis is correct and are not deterred by pragmatic considerations.
So K.R. can either have his disposition before Judge Arguelles or withdraw his admissions.
As an aside, I hope Judge Arguelles has (had) occasion to tour the Department of Juvenile Facilities prior to sending any 15 year old boy there.
Wednesday, December 30, 2015
P v. Haywood (3rd Dist.): The Fun/Split Continues; A VC 10851 Conviction is Not Eligible for PC 1170.18 Relief
Mr. Haywood was convicted of violating Vehicle Code section 10851. After the November 2014 election, Haywood petitioned the trial court pursuant to PC 1170.18 to reduce his 10851 conviction to a misdemeanor. The trial court denied the petition and the Third District affirms.
The opinion contains a few pearls of statutory interpretation, but is incomplete and a bit sloppy. The panel could have saved face and just affirmed based on deficiencies in Haywood's petition, but they instead mash some superficial textual observations into a farraginous mound with citations and an inapplicable latin phrase, and serve that to us as judicial textualism.
The threshold question in all 1170.18 cases is, had the defendant committed the crime of conviction after November 4, 2014, would the crime have necessarily been punished as a misdemeanor. For some reason (maybe a scotoma) the panel skips this step and jumps to the portion of 1170.18 that instructs upon which statutes shall be used for resentencing should the defendant meet the initial requirement. Instead the panel misconstrues the resentencing statutes as an exhaustive list of eligible crimes.
Under this panel's reasoning, a defendant whose crime of conviction was a felony burglary of an open 7Eleven wherein the defendant entered the store and stole a bottle of soda pop would not be eligible for 1170.18 relief, because PC 459 is not mentioned within 1170.18. Such is the consequence of the error the panel makes in confusing the test for eligibility with the resentencing statutes. The correct analysis of the the 7Eleven hypothetical is that, despite PC 459 not being mentioned in 1170.18, the defendant would be eligible under 1170.18. He would be eligible because had he committed his crime post-November 2014, his crime would necessarily have been prosecuted under PC 459.5, which is mentioned within 1170.18. This is a beginner's mistake to ignore the distinction between the two clauses in 1170.18.
Thankfully, the panel at least eventually approaches the threshold question; had Haywood committed his VC10851 today, would he necessarily be punished for a misdemeanor? That requires looking to PC 490.2, which, and I paraphrase, states that despite PC487 or any other statute defining grand theft, theft of property worth 950 dollars or less is necessarily punished as a misdemeanor.
The texts of 1170.18 and VC10851 create the next issue; whether the opening prepositional phrase was meant to limit the "thefts" that are to be subsumed within 490.2, or whether the phrase is informative only. Put another way, does 490.2 mandate that all thefts 950 dollars or less must be punished as misdemeanors, or does it only mandate that thefts falling within statutes defining grand theft must be punished as misdemeanors? The panel chooses the latter without actually examining the language or stating why the prepositional phrase should be construed as exhaustive.
Lastly the panel squanders the opportunity to decide an important issue; whether VC 10851 falls within the penal code's definition of "theft". Instead they substitute the observation that 10851 does not require an intent to permanently deprive, which is true. But that is not the issue. The issue is whether or not a 10851 violation necessarily falls within PC 484's definition of "theft".
The eventual holding, that a 10851 conviction is ineligible for relief pursuant to 1170.18, may be correct. But not for the reasons in this opinion.
The opinion contains a few pearls of statutory interpretation, but is incomplete and a bit sloppy. The panel could have saved face and just affirmed based on deficiencies in Haywood's petition, but they instead mash some superficial textual observations into a farraginous mound with citations and an inapplicable latin phrase, and serve that to us as judicial textualism.
The threshold question in all 1170.18 cases is, had the defendant committed the crime of conviction after November 4, 2014, would the crime have necessarily been punished as a misdemeanor. For some reason (maybe a scotoma) the panel skips this step and jumps to the portion of 1170.18 that instructs upon which statutes shall be used for resentencing should the defendant meet the initial requirement. Instead the panel misconstrues the resentencing statutes as an exhaustive list of eligible crimes.
Under this panel's reasoning, a defendant whose crime of conviction was a felony burglary of an open 7Eleven wherein the defendant entered the store and stole a bottle of soda pop would not be eligible for 1170.18 relief, because PC 459 is not mentioned within 1170.18. Such is the consequence of the error the panel makes in confusing the test for eligibility with the resentencing statutes. The correct analysis of the the 7Eleven hypothetical is that, despite PC 459 not being mentioned in 1170.18, the defendant would be eligible under 1170.18. He would be eligible because had he committed his crime post-November 2014, his crime would necessarily have been prosecuted under PC 459.5, which is mentioned within 1170.18. This is a beginner's mistake to ignore the distinction between the two clauses in 1170.18.
Thankfully, the panel at least eventually approaches the threshold question; had Haywood committed his VC10851 today, would he necessarily be punished for a misdemeanor? That requires looking to PC 490.2, which, and I paraphrase, states that despite PC487 or any other statute defining grand theft, theft of property worth 950 dollars or less is necessarily punished as a misdemeanor.
The texts of 1170.18 and VC10851 create the next issue; whether the opening prepositional phrase was meant to limit the "thefts" that are to be subsumed within 490.2, or whether the phrase is informative only. Put another way, does 490.2 mandate that all thefts 950 dollars or less must be punished as misdemeanors, or does it only mandate that thefts falling within statutes defining grand theft must be punished as misdemeanors? The panel chooses the latter without actually examining the language or stating why the prepositional phrase should be construed as exhaustive.
Lastly the panel squanders the opportunity to decide an important issue; whether VC 10851 falls within the penal code's definition of "theft". Instead they substitute the observation that 10851 does not require an intent to permanently deprive, which is true. But that is not the issue. The issue is whether or not a 10851 violation necessarily falls within PC 484's definition of "theft".
The eventual holding, that a 10851 conviction is ineligible for relief pursuant to 1170.18, may be correct. But not for the reasons in this opinion.
Monday, December 28, 2015
P v. Gomez (4th Dist., Div.2): Comes Another Prop 47 Split; Some VC 10851 Convictions Are Eligible for 1170.18 Relief
Gomez was convicted of a felony under California Vehicle Code section 10851 for taking a 2002 Chevy truck without permission of the owner. After the November 2014 election, Gomez petitioned the court to reduce his conviction to a misdemeanor pursuant to Penal Code section 1170.18. Gomez's petition was rather Delphic as to the legal grounds for his prayer. The trial court denied Gomez's petition, stating the "convicted charge does not qualify". Gomez appealed.
A panel of the Fourth District affirms. But it affirms because Gomez's petition failed to state facts, which if true, would entitle Gomez to the relief for which he prayed, to wit; that the Chevy was worth less than 950 dollars. Eschewing judicial-restraint, the panel goes on to state that certain 10851 convictions are eligible for reductions to misdemeanors pursuant to Penal Code section 1170.18, disagreeing with their colleagues (People v. Page (2015) 241 Cal.App.4th 714).
IMEO, neither the opinion in Page nor the opinion here really do an acceptable job of analyzing the statutes which create the conflict.
Section 1170.18 establishes the initial hurdle for petitioners who wish to have their convictions reduced; they must establish that had they committed their crime of conviction post-Prop47, the crime would have necessarily been punished as a misdemeanor. Gomez claims that his conviction, if committed today, would necessarily be punished as a misdemeanor under Penal Code section 490.2, which states, in pertinent part, that
Two statutory issues then arise. [1] Is the prepositional phrase "Notwithstanding Section 487 or any other provision of law defining grand theft" meant to be exhaustive or illustrative? Because 10851 does not "define grand theft", whether the introductory phrase is exhaustive or illustrative is critical. Further, [2] did Gomez's conviction involve "theft" as that term is defined within the penal code (see 484(a))?
Unfortunately these two issues are never answered in this opinion, nor are they even acknowledged.
A panel of the Fourth District affirms. But it affirms because Gomez's petition failed to state facts, which if true, would entitle Gomez to the relief for which he prayed, to wit; that the Chevy was worth less than 950 dollars. Eschewing judicial-restraint, the panel goes on to state that certain 10851 convictions are eligible for reductions to misdemeanors pursuant to Penal Code section 1170.18, disagreeing with their colleagues (People v. Page (2015) 241 Cal.App.4th 714).
IMEO, neither the opinion in Page nor the opinion here really do an acceptable job of analyzing the statutes which create the conflict.
Section 1170.18 establishes the initial hurdle for petitioners who wish to have their convictions reduced; they must establish that had they committed their crime of conviction post-Prop47, the crime would have necessarily been punished as a misdemeanor. Gomez claims that his conviction, if committed today, would necessarily be punished as a misdemeanor under Penal Code section 490.2, which states, in pertinent part, that
Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanorThe real issue is whether Gomez's 10851 crime, if committed today, would necessarily have fallen within 490.2. If so, the mandatory language directs the result; "shall be considered petty theft and shall be punished as a misdemeanor".
Two statutory issues then arise. [1] Is the prepositional phrase "Notwithstanding Section 487 or any other provision of law defining grand theft" meant to be exhaustive or illustrative? Because 10851 does not "define grand theft", whether the introductory phrase is exhaustive or illustrative is critical. Further, [2] did Gomez's conviction involve "theft" as that term is defined within the penal code (see 484(a))?
Unfortunately these two issues are never answered in this opinion, nor are they even acknowledged.
Friday, December 25, 2015
P v. Marks (4th Dist., Div2): More Prop 47 Petition Guidance
Within the facts resulting in this well-reasoned opinion lurks an interesting Proposition 47-related issue which was not ripe in this case, but will eventually raise its head in the appellate courts.
Mr. Marks was convicted of Penal Code section 273.5(a) (domestic violence) and admitted six prior prison terms (each a one year status enhancement). He was eventually sent "upstate" for 8 years (2 years for the domestic violence plus six for the prior prison terms). Three of the prior prison terms involved convictions for simple possession of controlled substances (Health & Safety Code section 11350). Recall that Proposition 47 amended 11350 to reduce the crime, absent exceptions not applicable here, to a misdemeanor.
Marks petitions the trial court, in propria persona, to reduce his three prior 11350 convictions to misdemeanors. But he files the petition under the case number for the domestic violence matter and the trial court denies the petition. In straightforward fashion the panel examines the statutory language and affirms the denial. The panel holds that Marks needs to file the petitions under the case numbers for the 11350 convictions, since those are the convictions he seeks to reduce (not the 273.5 conviction).
The issue lurking is this: does an otherwise eligible prior prison term that was served for an offense which subsequently is reduced to a misdemeanor under Proposition 47 still qualify as a one year status enhancement? It is a question for another day.
Mr. Marks was convicted of Penal Code section 273.5(a) (domestic violence) and admitted six prior prison terms (each a one year status enhancement). He was eventually sent "upstate" for 8 years (2 years for the domestic violence plus six for the prior prison terms). Three of the prior prison terms involved convictions for simple possession of controlled substances (Health & Safety Code section 11350). Recall that Proposition 47 amended 11350 to reduce the crime, absent exceptions not applicable here, to a misdemeanor.
Marks petitions the trial court, in propria persona, to reduce his three prior 11350 convictions to misdemeanors. But he files the petition under the case number for the domestic violence matter and the trial court denies the petition. In straightforward fashion the panel examines the statutory language and affirms the denial. The panel holds that Marks needs to file the petitions under the case numbers for the 11350 convictions, since those are the convictions he seeks to reduce (not the 273.5 conviction).
The issue lurking is this: does an otherwise eligible prior prison term that was served for an offense which subsequently is reduced to a misdemeanor under Proposition 47 still qualify as a one year status enhancement? It is a question for another day.
P v. Thompson (2nd Dist., Div.4): A Disciplined Opinion & Sloppy Dissent re PC 490.2 and 484d(e)
Proposition 47, the voter initiative passed November 4, 2014, has given rise to novel issues that have provided a unique glimpse into the judicial discipline and, in my opinion, judicial competence, of California's intermediate courts of appeal. Presented with new legislation for which there exists no binding authority, California's district courts of appeal have issued opinions (regardless of outcome) that would embarrass a first year law student, as well as opinions that demonstrate a thorough knowledge of, and disciplined application of, the cannons of statutory interpretation.
This opinion is an example of the latter. The dissent, unfortunately, is an example of the former.
Back in 2011, Mr. Thompson found someone else's debit card on the grounds of a gas station. Thompson picked it up and used it to make three fraudulent purchases. For this he was convicted of violating California Penal Code section 484e(d).
Code section 490.2.
Only if the words are capable of more than one reasonable meaning should the court begin down the road of looking at ballot pamphlets, statements by proponents and opponents of initiatives, and otherwise trying to get inside the head of the "average voter".
The words at issue here are susceptible of only one meaning regarding whether 484e(d) is textually excluded from section 490.2. It is not excluded. The words "Notwithstanding . . . any other provision of law defining grand theft" mean that 484e(d) is not categorically excluded from 490.2. But that is not the end of the issue. The next issue is whether 484e(d) is a crime of "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed [950 bucks]." To answer this question requires determining whether access card information is "property" and, if so, whether the access card information is worth less than 950 dollars.
I leave it to the reader to determine the persuasiveness of the legal analysis. But you cannot fault the opinion's method of analysis, which is the correct method.
The dissent, unsurprisingly, skips any real meaningful statutory analysis. Instead it posits that not all 484e(d) convictions involve a "taking" because 484e(d) prohibits acquiring or retaining access card information, without authorization, and with fraudulent intent. According to the dissent, retaining access card information without authorization is not a "taking" thus taking 484e(d) convictions outside those described in 490.2.
This is embarrassingly wrong. A "taking", according to the California Supreme Court, includes retaining possession of property, even if originally possessed pursuant to authorization, when the authorization expires. This is the definition of embezzlement, which has been theft since the times of Blackstone. Keeping a rental car after your contract expires is a taking. P v. Carr. Taking a test drive and keeping the car for a week is a "taking". P v. Hutchings.
Which just goes to show that not only does judicial discipline make the job easier, it also makes it less likely you'll write something silly.
This opinion is an example of the latter. The dissent, unfortunately, is an example of the former.
Back in 2011, Mr. Thompson found someone else's debit card on the grounds of a gas station. Thompson picked it up and used it to make three fraudulent purchases. For this he was convicted of violating California Penal Code section 484e(d).
“[e]very person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder‟s or issuer‟s consent, with the intent to use it fraudulently, is guilty of grand theft.”Following the passage of Proposition 47, Thompson petitioned the trial court to reduce his 484e(d) conviction to a misdemeanor via Penal Code section 1170.18. The basis for his petition was found in Penal
Code section 490.2.
“Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor . . . .”The trial court, reason unstated, ruled that Thompson's 484e(d) conviction did not qualify under 490.2. The Second District panel, in a 2-1 decision, reverses. There is a split of authority on this issue already. But what distinguishes this opinion is it is the first opinion to contain a thorough statutory analysis based upon the accepted cannon of statutory interpretation: first, examine the words of the statute at issue within the context of the entire statute, and then within the context of the entire code. If the words, given their ordinary meaning, provide the answer, the job is done.
Only if the words are capable of more than one reasonable meaning should the court begin down the road of looking at ballot pamphlets, statements by proponents and opponents of initiatives, and otherwise trying to get inside the head of the "average voter".
The words at issue here are susceptible of only one meaning regarding whether 484e(d) is textually excluded from section 490.2. It is not excluded. The words "Notwithstanding . . . any other provision of law defining grand theft" mean that 484e(d) is not categorically excluded from 490.2. But that is not the end of the issue. The next issue is whether 484e(d) is a crime of "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed [950 bucks]." To answer this question requires determining whether access card information is "property" and, if so, whether the access card information is worth less than 950 dollars.
I leave it to the reader to determine the persuasiveness of the legal analysis. But you cannot fault the opinion's method of analysis, which is the correct method.
The dissent, unsurprisingly, skips any real meaningful statutory analysis. Instead it posits that not all 484e(d) convictions involve a "taking" because 484e(d) prohibits acquiring or retaining access card information, without authorization, and with fraudulent intent. According to the dissent, retaining access card information without authorization is not a "taking" thus taking 484e(d) convictions outside those described in 490.2.
This is embarrassingly wrong. A "taking", according to the California Supreme Court, includes retaining possession of property, even if originally possessed pursuant to authorization, when the authorization expires. This is the definition of embezzlement, which has been theft since the times of Blackstone. Keeping a rental car after your contract expires is a taking. P v. Carr. Taking a test drive and keeping the car for a week is a "taking". P v. Hutchings.
Which just goes to show that not only does judicial discipline make the job easier, it also makes it less likely you'll write something silly.
Friday, December 18, 2015
People v. Burton (4th Dist., Div. 2): PC 273.5 is a Crime of Moral Turpitude
Mr. Burton was convicted of first-degree murder. Burton took the stand in his own defense and was impeached with his two prior felony convictions for violating Penal Code section 273.5. A Fourth District panel affirms the conviction. The published portion of the opinion holds that PC 273.5 is categorically a crime of moral turpitude, dismissing a contrary holding from the United States Ninth Circuit Court of Appeal in Holder v. Morales-Garcia.
Crimes of moral turpitude constitute a category of crimes which have particular consequences in immigration proceedings. Also, in California, whether a crime is one of moral turpitude may determine whether a conviction for that crime may be admissible evidence for impeaching a witness. As you may imagine, the definition of a crime of moral turpitude is less than precise. "A willingness to do evil" and "indicative of a depraved heart" don't provide a lot of guidance. Simple assault or battery have been held to not be crimes of moral turpitude. However battery and assault upon persons with whom one has a "special relationship" are crimes of moral turpitude. So to determine whether 273.5 is a crime of moral turpitude requires examining the relationships to which it applies. Relationships within which the members are right to expect "stability and safety" are said to be such "special relationships".
Penal Code section 273.5 is sometimes given the shorthand of the "domestic violence"crime because it criminalizes willfully causing a traumatic injury to someone with whom you have, or had, a particular relationship. And as society has changed its views of intimate relationships over time, the California Legislature has expanded the pool of relationships encompassed by 273.5.
Originally 273.5, in pertinent part, only prohibited a husband from beating his wife. By 1977 people were shacking up without getting married so 273.5 was expanded to cover cohabiting members of the opposite sex. Then the gender limitations were deleted and the law was expanded to cover people who were engaged, had formerly been engaged, were in a dating relationship, had formerly been in a dating relationship, had formerly cohabited, had formerly been married, and persons with whom you had child in common (babymammas and babydaddys).
Prior to the latest expansion, California District Courts of Appeal had always held 273.5 to be a crime of moral turpitude. After the expansion to cover "former cohabitants" and persons "formerly in a dating relationship", the United States Court of Appeal for the Ninth Circuit had occasion to decide Morales-Garcia. The Ninth Circuit held that because the relationships covered by 273.5 had been so diluted as to include relationships where nobody would reasonably expect "stability and safety" it was no longer a crime of moral turpitude.
This panel disagrees, deferring to the legislature's determination that such relationships are "special" enough. It is a reasonable holding. The best part of the opinion is where it states the legislature's definitions of particular relationships. "Dating" includes "frequent intimate associations and . . . the expectation of sexual involvement". Which begs the question whether both partners have to share that expectation. I have frequently found myself in relationships where there is a divergence of expectations concerning such matters.
Crimes of moral turpitude constitute a category of crimes which have particular consequences in immigration proceedings. Also, in California, whether a crime is one of moral turpitude may determine whether a conviction for that crime may be admissible evidence for impeaching a witness. As you may imagine, the definition of a crime of moral turpitude is less than precise. "A willingness to do evil" and "indicative of a depraved heart" don't provide a lot of guidance. Simple assault or battery have been held to not be crimes of moral turpitude. However battery and assault upon persons with whom one has a "special relationship" are crimes of moral turpitude. So to determine whether 273.5 is a crime of moral turpitude requires examining the relationships to which it applies. Relationships within which the members are right to expect "stability and safety" are said to be such "special relationships".
Penal Code section 273.5 is sometimes given the shorthand of the "domestic violence"crime because it criminalizes willfully causing a traumatic injury to someone with whom you have, or had, a particular relationship. And as society has changed its views of intimate relationships over time, the California Legislature has expanded the pool of relationships encompassed by 273.5.
Originally 273.5, in pertinent part, only prohibited a husband from beating his wife. By 1977 people were shacking up without getting married so 273.5 was expanded to cover cohabiting members of the opposite sex. Then the gender limitations were deleted and the law was expanded to cover people who were engaged, had formerly been engaged, were in a dating relationship, had formerly been in a dating relationship, had formerly cohabited, had formerly been married, and persons with whom you had child in common (babymammas and babydaddys).
Prior to the latest expansion, California District Courts of Appeal had always held 273.5 to be a crime of moral turpitude. After the expansion to cover "former cohabitants" and persons "formerly in a dating relationship", the United States Court of Appeal for the Ninth Circuit had occasion to decide Morales-Garcia. The Ninth Circuit held that because the relationships covered by 273.5 had been so diluted as to include relationships where nobody would reasonably expect "stability and safety" it was no longer a crime of moral turpitude.
This panel disagrees, deferring to the legislature's determination that such relationships are "special" enough. It is a reasonable holding. The best part of the opinion is where it states the legislature's definitions of particular relationships. "Dating" includes "frequent intimate associations and . . . the expectation of sexual involvement". Which begs the question whether both partners have to share that expectation. I have frequently found myself in relationships where there is a divergence of expectations concerning such matters.
In re Chase C. (4th Dist., Div. 1): Not Everything that Makes a Policeman's Job More Difficult Violates PC 148
Master Chase was part of a group of 10 teenagers at a San Diego park. Two members of the group matched the descriptions, given to police by some younger kids near the park, of high schoolers who were selling drugs. Chase was not one of the two suspects.
When the police told the two suspects to have seat on the ground, one cooperated, but the other, Brandon, refused to cooperate. Chase told Brandon that "this was bullshit" and that Brandon should "fuck the cop" and for Brandon to "not say shit". Brandon struggled with the police and was eventually cuffed and put in the back of a squad car.
More police arrived and the remaining teenagers were placed into handcuffs and questioned. Chase told everyone this was still "bullshit" and they "shouldn't say shit" to the police. This caused the other teenagers to question the police about why they were being handcuffed and to refuse to answer questions. The police then threatened to arrest the youngsters and call their parents should they refuse to cooperate. So the kids gave the police their names, except for Chase, who told the police he "pled the fifth" and again asserted the actions of the police constituted taurine egesta.
Chase was arrested and, before arriving at the booking station, provided his name to the police.
For his protestations, Chase was charged with violating California Penal Code section 148, which criminalizes willfully resisting, delaying, or obstructing a peace officer who is legally performing her duties. The Honorable Browder Willis, III, found Chase guilty and made Chase a ward of the court for one year or until he should reach the age of 18, whichever proves longer (I do not make this up-a judge actually said this, apparently suffering from discalculia).
A Fourth District panel reverses this nonsense.
The opinion first points out the obvious, that verbal criticism of the government is political speech, a category of speech entitled to First Amendment protection. As long as physical interference doesn't result, verbal criticism of the government is protected speech even if it is intended to interfere with the police. And "this is bullshit" is every bit as valid of a criticism as "Sir, your Constitutional violations against the citizenry are an affront to our great nation".
Second, even if Chase's urging his fellow citizens to withhold their names from the police could be said to have delayed the police, it cannot be the basis of a 148 because the detention of the eight non-suspects violated the Fourth Amendment, and were hence unlawful. Unless violating the Constitution is a "duty" of the constabulary (we're not there yet), Chase's protests cannot be said to have delayed any duty of the police.
Finally, Chase's refusal to give his name is also protected speech. Not until a suspect arrives at the booking desk, can his refusal constitute a violation of PC 148.
It is nice to see some pull-back from the appellate courts on what is required for a 148 under the "delay" prong. While "resisting" and "obstructing" are sufficiently clear, the "delay" prong is ripe for abuse. This is because asserting one's Constitutional rights will always "delay" the police in discharging their duties. It is irrefragable that demanding the government obtain a warrant before they search the inside of your home "delays" the police in their duties. Likewise with refusing to answer questions or asking to confer with your lawyer during an interrogation. Too often police, as the officer here testified, believe it is a crime to do anything which "makes our job harder".
This panel disagrees, thankfully.
When the police told the two suspects to have seat on the ground, one cooperated, but the other, Brandon, refused to cooperate. Chase told Brandon that "this was bullshit" and that Brandon should "fuck the cop" and for Brandon to "not say shit". Brandon struggled with the police and was eventually cuffed and put in the back of a squad car.
More police arrived and the remaining teenagers were placed into handcuffs and questioned. Chase told everyone this was still "bullshit" and they "shouldn't say shit" to the police. This caused the other teenagers to question the police about why they were being handcuffed and to refuse to answer questions. The police then threatened to arrest the youngsters and call their parents should they refuse to cooperate. So the kids gave the police their names, except for Chase, who told the police he "pled the fifth" and again asserted the actions of the police constituted taurine egesta.
Chase was arrested and, before arriving at the booking station, provided his name to the police.
For his protestations, Chase was charged with violating California Penal Code section 148, which criminalizes willfully resisting, delaying, or obstructing a peace officer who is legally performing her duties. The Honorable Browder Willis, III, found Chase guilty and made Chase a ward of the court for one year or until he should reach the age of 18, whichever proves longer (I do not make this up-a judge actually said this, apparently suffering from discalculia).
A Fourth District panel reverses this nonsense.
The opinion first points out the obvious, that verbal criticism of the government is political speech, a category of speech entitled to First Amendment protection. As long as physical interference doesn't result, verbal criticism of the government is protected speech even if it is intended to interfere with the police. And "this is bullshit" is every bit as valid of a criticism as "Sir, your Constitutional violations against the citizenry are an affront to our great nation".
Second, even if Chase's urging his fellow citizens to withhold their names from the police could be said to have delayed the police, it cannot be the basis of a 148 because the detention of the eight non-suspects violated the Fourth Amendment, and were hence unlawful. Unless violating the Constitution is a "duty" of the constabulary (we're not there yet), Chase's protests cannot be said to have delayed any duty of the police.
Finally, Chase's refusal to give his name is also protected speech. Not until a suspect arrives at the booking desk, can his refusal constitute a violation of PC 148.
It is nice to see some pull-back from the appellate courts on what is required for a 148 under the "delay" prong. While "resisting" and "obstructing" are sufficiently clear, the "delay" prong is ripe for abuse. This is because asserting one's Constitutional rights will always "delay" the police in discharging their duties. It is irrefragable that demanding the government obtain a warrant before they search the inside of your home "delays" the police in their duties. Likewise with refusing to answer questions or asking to confer with your lawyer during an interrogation. Too often police, as the officer here testified, believe it is a crime to do anything which "makes our job harder".
This panel disagrees, thankfully.
Wednesday, December 16, 2015
In re M.L. (First Dist., Div.1): Simultaneous Crimes and W&I 733
M.L. robbed a couple at gunpoint, hopped in a car, and attempted to drive off with the loot. He was captured after a brief police chase. The state charged M.L. with, and M.L. admitted, committing robbery and illegal possession of a pistol. The trial court judge sent M.L. off to DJF, California's Department of Juvenile Facilities (formerly the Department of Juvenile Justice, and formerly, formerly, the California Youth Authority).
On appeal M.L. argues that California Welfare and Institutions Code section 733 made him ineligible for a DJF commitment. Section 733 states, in pertinent part, that a DJF commitment is prohibited when a minor “has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707.”
Robbery is described in section 707(b); illegal possession of a pistol is not described in 707(b). So, if the "most recent offense" is the pistol, M.L. cannot be sent to the DJF. But if the robbery is the "most recent offense", he can be sent to the DJF. Which is it?
M.L. argues that it is the pistol since he still possessed the pistol after he had robbed the couple. The opinion counters that actually M.L. must have possessed the pistol before the robbery. But the possession continued until he was caught, M.L. says. So did the robbery, because you never made it to a place of temporary safety, retorts the panel, affirming the DJF commitment.
Although the panel takes pains to not actually describe their reasoning, they find the crimes were committed at the same time. Since both crimes were the most recent, it is correct to say either was the most recent and they choose the robbery. It is a reasonable outcome, but the opinion is sloppy for two reasons.
First, if you are going to conduct a statutory analysis, pay attention to the words of the statute. Section 733 concerns the most recent offense "alleged in any petition and admitted". It is not the time of commission, rather the timing of the allegation and admission. Second, the panel commits the most annoying of mid-level appellate court errors, using legislative history and other secondary materials to interpret a statute without first finding textual ambiguity. A little cannonical discipline surely isn't too much to ask, is it?
On appeal M.L. argues that California Welfare and Institutions Code section 733 made him ineligible for a DJF commitment. Section 733 states, in pertinent part, that a DJF commitment is prohibited when a minor “has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707.”
Robbery is described in section 707(b); illegal possession of a pistol is not described in 707(b). So, if the "most recent offense" is the pistol, M.L. cannot be sent to the DJF. But if the robbery is the "most recent offense", he can be sent to the DJF. Which is it?
M.L. argues that it is the pistol since he still possessed the pistol after he had robbed the couple. The opinion counters that actually M.L. must have possessed the pistol before the robbery. But the possession continued until he was caught, M.L. says. So did the robbery, because you never made it to a place of temporary safety, retorts the panel, affirming the DJF commitment.
Although the panel takes pains to not actually describe their reasoning, they find the crimes were committed at the same time. Since both crimes were the most recent, it is correct to say either was the most recent and they choose the robbery. It is a reasonable outcome, but the opinion is sloppy for two reasons.
First, if you are going to conduct a statutory analysis, pay attention to the words of the statute. Section 733 concerns the most recent offense "alleged in any petition and admitted". It is not the time of commission, rather the timing of the allegation and admission. Second, the panel commits the most annoying of mid-level appellate court errors, using legislative history and other secondary materials to interpret a statute without first finding textual ambiguity. A little cannonical discipline surely isn't too much to ask, is it?
People v. Wright (First Dist., Div. One): Affirming a Murder Verdict despite Erroneous Instructions and a Facebooking Juror (LOL)?
A synoptic overview of this case is as follows. Wright was initially tried for first-degree murder
and the lesser-related shooting into a car.
At her first trial, the jury was correctly instructed, deliberated for
10 days, submitted questions to the judge asking for clarification on certain
instructions, and eventually hung on the murder count, finding Wright guilty of
shooting into the car. At the retrial, the
judge, based on legal reasoning that would rightfully earn the scorn of a law
professor accustomed to first year law students, misinstructed the jury, which then
deliberated less than a day before finding Wright guilty of first degree murder.
The second jury, which received the erroneous
instructions, included a woman who engaged in conversations about the trial on
her Facebook page during the trial including, “Yeah, my mind is already made up
so I am FBing. LOL!”.
In a 2-1 decision, a panel of First District finds the trial
court’s failure to properly instruct the jury was harmless, as was the
misconduct of the juror.
This is not a case that inspires confidence in California’s
legal system.
Ms. Wright shot and killed her ex-boyfriend/babydaddy, Mr.
Green, after he had arrived home from work and parked his car. Their relationship had been tumultuous,
on-and-off, and had produced a child.
Wright suffered severe depression and had tried to top herself twice in
the past. Wright once had an abortion at
Green’s request and Green had put his hands on her while she was pregnant. Now separated, the two fought over custody of
their son. Green insulted Wright’s
parenting and threatened to gain full custody of their son.
At the second trial the court refused to give instructions
on provocation-second degree murder and heat of passion-manslaughter
(instructions both given at the first trial), believing the first jury’s guilty
verdict on the car shooting charge somehow operated as collateral estoppel as
to Wright’s mental state. These instructional omissions are held to be
erroneous, but harmless, given the second jury’s finding that the
laying-in-wait allegation was true.
As to the Facebook-posting juror, the panel agrees with the
trial court that the juror “didn’t think what she was doing was wrong” and did
not “disregard her duty as a juror”. In
the juror’s words, “she had not been using her good judgment since her husband’s
recent death”. I guess this fact wasn't divulged during jury selection.
Monday, December 14, 2015
People v. Jimenez (5th Dist.): The "Crash" Following Meth Use Counts as "Under the Influence"
Methylamphetamine very effectively stimulates the central nervous system. A user can stay up for days, stave off hunger, and remain alert and vigilant. For this reason it was commonly given to soldiers during WWII as these effects are useful during prolonged battle. But eventually the body must rest and the result is a "crash" where the user's body says "no more" and forces the body to sleep.
Unfortunately, Mr. Jimenez was behind the wheel when he "crashed". He fell asleep and ran over two pedestrians, killing them. He was found guilty of, among other crimes, second degree murder upon the theory he was under the influence of methamphetamine when he killed the pedestrians.
A panel from the Fifth District affirms. Jimenez argues that he wasn't really "under the influence" of methylamphetamine, rather he fell asleep because he was crashing, kinda of the opposite of being under the influence. He argues had he been under the influence of methamphetamine there is no way he would have fallen asleep. Although this argument has some facial appeal, the panel digs a little deeper and finds that the "influence" of a drug is not limited to the drug's immediate or desired effects, rather a drug's influence includes its effects upon the body following the initial "high". So if meth causes a prolonged period of cerebral-spinal stimulation followed by a sleep-inducing "crash", that "crash" is part of the "influence" of the drug. Hence they find Jimenez was under the influence of meth when he fell asleep at the wheel.
Unfortunately, Mr. Jimenez was behind the wheel when he "crashed". He fell asleep and ran over two pedestrians, killing them. He was found guilty of, among other crimes, second degree murder upon the theory he was under the influence of methamphetamine when he killed the pedestrians.
A panel from the Fifth District affirms. Jimenez argues that he wasn't really "under the influence" of methylamphetamine, rather he fell asleep because he was crashing, kinda of the opposite of being under the influence. He argues had he been under the influence of methamphetamine there is no way he would have fallen asleep. Although this argument has some facial appeal, the panel digs a little deeper and finds that the "influence" of a drug is not limited to the drug's immediate or desired effects, rather a drug's influence includes its effects upon the body following the initial "high". So if meth causes a prolonged period of cerebral-spinal stimulation followed by a sleep-inducing "crash", that "crash" is part of the "influence" of the drug. Hence they find Jimenez was under the influence of meth when he fell asleep at the wheel.
People v. Burnes (6th Dist.): Error for Trial Court to Deny 117.126 Petition Based Upon Facts in Presentence Report.
Mr. Burnes was sentenced to a life term after pleading to, among other crimes, being a felon in possession of a firearm and being in possession of metal knuckles. His was a life term because he had two prior "strike" convictions. This was in 2010, when the "three strikes" law was actually "two strikes and any subsequent felony". Following the passage of a voter initiative changing the law to require the triggering felony to be a "strike" (with exceptions inapplicable here), Burnes filed a petition in court to have his life sentenced recalled under PC 1170.126.
Under 1170.126, a prisoner serving a life sentence under the old "two strikes and any subsequent felony" rule may petition to have his sentence recalled and be sentenced under the new law. In Burnes' case, his eligibility turned on whether he was "armed" with a firearm or deadly weapon during the commission of his latest felonies, which included possession of a firearm and possession of metal knuckles.
But alas, possession is not the same as being "armed with", so the convictions themselves do not end the inquiry. During the proceedings, the government submitted a copy of a presentence report, written by a probation officer, which contained a recitation of facts from a police report. Burnes objected that the report was not part of the record of conviction and that the court's inquiry is limited to the record of conviction. The trial court, relying upon the presentence report, found Burnes ineligible for resentencing.
The Sixth District reverses. They hold a presentence report is not, in these circumstances, part of the record of conviction, and the trial court is limited to the record of conviction. Additionally, the opinion states that even if the report were part of the record of conviction, the report's recitation of the facts contained in the police report would be inadmissible hearsay.
The latter portions of the opinion imply this may be an error the Sixth District is sick of seeing. To wit,
Under 1170.126, a prisoner serving a life sentence under the old "two strikes and any subsequent felony" rule may petition to have his sentence recalled and be sentenced under the new law. In Burnes' case, his eligibility turned on whether he was "armed" with a firearm or deadly weapon during the commission of his latest felonies, which included possession of a firearm and possession of metal knuckles.
But alas, possession is not the same as being "armed with", so the convictions themselves do not end the inquiry. During the proceedings, the government submitted a copy of a presentence report, written by a probation officer, which contained a recitation of facts from a police report. Burnes objected that the report was not part of the record of conviction and that the court's inquiry is limited to the record of conviction. The trial court, relying upon the presentence report, found Burnes ineligible for resentencing.
The Sixth District reverses. They hold a presentence report is not, in these circumstances, part of the record of conviction, and the trial court is limited to the record of conviction. Additionally, the opinion states that even if the report were part of the record of conviction, the report's recitation of the facts contained in the police report would be inadmissible hearsay.
The latter portions of the opinion imply this may be an error the Sixth District is sick of seeing. To wit,
We emphasize that the trial court may consider only relevant, reliable, admissible portions of the record of conviction when determining whether a defendant is eligible for Proposition 36 resentencing.
Thursday, December 10, 2015
People v. King (2nd Dist., Div.2): Another Case Re PC484e(d) and Proposition 47
The issue decided in this case has a split of opinions within the California District Courts of Appeal; is a conviction for PC 484e(d) facially eligible for relief under PC 1170.18? Three statutes are involved, PC484e(d), PC 490.2, and PC 1170.18. For some reason, rather than conduct a tight statutory analysis in these (and other Prop 47) cases, the District courts seem hell-bent on heading straight toward the murky waters of policy arguments without first examining the statutory text in detail.
The facts here are that in June of 2014, Mr. King tried to buy an iPad using someone else's credit card. He ended up pleading guilty to grand theft under PC 484e(d) which prohibits obtaining or possessing "access card account information" of an account validly issued to somebody else, without consent, and with the intent to use it fraudulently.
Following the November 2014 passage of Proposition 47, King petitioned the trial court under PC 1170.18 to reduce his conviction to a misdemeanor under the auspices of PC 490.2. The trial court denied King's petition and King appealed. A Second District panel affirms.
Penal Code section 1170.18 states which convictions are eligible for reductions to misdemeanors, those felony convictions in which the defendant "would have been guilty of a misdemeanor under the act that added this section had this act been in effect at the time the offense". Stated in another way, would the crime of conviction been a straight misdemeanor if committed November 5, 2014 (the day proposition 47 went into effect)?
So had King possessed the credit card, without permission and with fraudulent intent, on November 5, 2014, would it have been a misdemeanor? While Proposition 47 did not amend PC 484e, it did add PC 490.2 which says that despite what any other grand theft statute may say, "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed [$950] shall be considered petty theft and shall be punished as a misdemeanor."
It's clear then that if King's crime was obtaining any property by theft and the property he obtained was worth 950 dollars or less, that crime, if committed on November 5, 2014, would have been a misdemeanor. This is the real question that the panel never answers. And it appears King helped them along this path by couching his argument in the fact that the iPad King tried to buy was only worth 700 dollars.
The problem with King making this argument is that his crime was not trying to buy the iPad with the credit card, but possessing the credit card with fraudulent intent. King's theft was of the access card information, not the iPad. The better, and easier, argument is that King's crime was theft of the access card information, and the access card information was "property" worth less than $950 dollars.
Rather than answer the real question; whether access card information is "property" (if it is, 490.2 applies), the panel examines the legislature's statutory "scheme" for punishing access card information crimes and asserts that to find PC 484e(d) convictions eligible under 1170.18 would nullify 484e(d). This argument is etiolated for two reasons. First, it ignores the cannon of leges posteriores priores contrarias abrogant. Second, it is logically incorrect. If access card information is "property" and stealing "property" of any value, however slight, is punishable, theft of access card information with fraudulent intent would still be a crime even if the value of the information was negligible (akin to stealing a blank check from a closed account).
Someday an appellate court will stop dancing around the issue and decide whether access card information is "property" for purposes of Penal Code section 490.2. Pity the courts have already wasted the opportunity to do so.
The facts here are that in June of 2014, Mr. King tried to buy an iPad using someone else's credit card. He ended up pleading guilty to grand theft under PC 484e(d) which prohibits obtaining or possessing "access card account information" of an account validly issued to somebody else, without consent, and with the intent to use it fraudulently.
Following the November 2014 passage of Proposition 47, King petitioned the trial court under PC 1170.18 to reduce his conviction to a misdemeanor under the auspices of PC 490.2. The trial court denied King's petition and King appealed. A Second District panel affirms.
Penal Code section 1170.18 states which convictions are eligible for reductions to misdemeanors, those felony convictions in which the defendant "would have been guilty of a misdemeanor under the act that added this section had this act been in effect at the time the offense". Stated in another way, would the crime of conviction been a straight misdemeanor if committed November 5, 2014 (the day proposition 47 went into effect)?
So had King possessed the credit card, without permission and with fraudulent intent, on November 5, 2014, would it have been a misdemeanor? While Proposition 47 did not amend PC 484e, it did add PC 490.2 which says that despite what any other grand theft statute may say, "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed [$950] shall be considered petty theft and shall be punished as a misdemeanor."
It's clear then that if King's crime was obtaining any property by theft and the property he obtained was worth 950 dollars or less, that crime, if committed on November 5, 2014, would have been a misdemeanor. This is the real question that the panel never answers. And it appears King helped them along this path by couching his argument in the fact that the iPad King tried to buy was only worth 700 dollars.
The problem with King making this argument is that his crime was not trying to buy the iPad with the credit card, but possessing the credit card with fraudulent intent. King's theft was of the access card information, not the iPad. The better, and easier, argument is that King's crime was theft of the access card information, and the access card information was "property" worth less than $950 dollars.
Rather than answer the real question; whether access card information is "property" (if it is, 490.2 applies), the panel examines the legislature's statutory "scheme" for punishing access card information crimes and asserts that to find PC 484e(d) convictions eligible under 1170.18 would nullify 484e(d). This argument is etiolated for two reasons. First, it ignores the cannon of leges posteriores priores contrarias abrogant. Second, it is logically incorrect. If access card information is "property" and stealing "property" of any value, however slight, is punishable, theft of access card information with fraudulent intent would still be a crime even if the value of the information was negligible (akin to stealing a blank check from a closed account).
Someday an appellate court will stop dancing around the issue and decide whether access card information is "property" for purposes of Penal Code section 490.2. Pity the courts have already wasted the opportunity to do so.
Tuesday, December 8, 2015
People v. Johnson (4th Dist. Div.2): A Commendable Correction
A jury convicted Mr. Johnson of felony DUI causing injury. As Johnson was found to have suffered two prior strikes, two nickel priors, and a prior prison term, he was sentenced to 41 years to life.
Approximately one year after the verdict, Johnson moved the court for release of the jurors' identifying information (Cal. Code Civ. Pro. 237) based upon declarations from Johnson's mother and step-father. The step-father's declaration stated that one day after the verdict, three of the jurors contacted him and stated that some of the jurors were wondering during deliberations why Johnson did not take the stand if he were innocent. The trial court denied the motion without holding an evidentiary hearing and Johnson appealed.
In the first appeal (this post concerns the second), a panel of the Fourth District reversed the trial court's denial of Johnson's motion to disclose juror information without holding an evidentiary hearing because the step-father's declaration, if taken as true, did make out a prima facie case of juror misconduct, and the trial court's finding otherwise was error. The panel remanded the case for the trial court to make a credibility determination as to the veracity of step-father's declaration and if found credible, to hold an evidentiary hearing regarding Johnson's motion.
The trial court found step-father's declaration was not credible and again denied Johnson's motion without an evidentiary hearing. Johnson appealed once again.
And the Fourth District reverses again; this time because they erred in directing the trial court to make a credibility determination before holding a hearing on Johnson's motion. The declaration, taken on its face, contained facts evincing juror misconduct. This is the statutory trigger for an evidentiary hearing. By injecting a credibility determination, the Court of Appeal got it wrong on the first appeal.
Commendably, the panel acknowledges the error and corrects it. To quote the opinion, "better late than never." The case is remanded with directions that the trial court hold the evidentiary hearing required.
Approximately one year after the verdict, Johnson moved the court for release of the jurors' identifying information (Cal. Code Civ. Pro. 237) based upon declarations from Johnson's mother and step-father. The step-father's declaration stated that one day after the verdict, three of the jurors contacted him and stated that some of the jurors were wondering during deliberations why Johnson did not take the stand if he were innocent. The trial court denied the motion without holding an evidentiary hearing and Johnson appealed.
In the first appeal (this post concerns the second), a panel of the Fourth District reversed the trial court's denial of Johnson's motion to disclose juror information without holding an evidentiary hearing because the step-father's declaration, if taken as true, did make out a prima facie case of juror misconduct, and the trial court's finding otherwise was error. The panel remanded the case for the trial court to make a credibility determination as to the veracity of step-father's declaration and if found credible, to hold an evidentiary hearing regarding Johnson's motion.
The trial court found step-father's declaration was not credible and again denied Johnson's motion without an evidentiary hearing. Johnson appealed once again.
And the Fourth District reverses again; this time because they erred in directing the trial court to make a credibility determination before holding a hearing on Johnson's motion. The declaration, taken on its face, contained facts evincing juror misconduct. This is the statutory trigger for an evidentiary hearing. By injecting a credibility determination, the Court of Appeal got it wrong on the first appeal.
Commendably, the panel acknowledges the error and corrects it. To quote the opinion, "better late than never." The case is remanded with directions that the trial court hold the evidentiary hearing required.
Monday, December 7, 2015
People v. Dealba: A Panel from the Second District Makes an Unnecessary Mess of the Crime of Battery
Mr. Dealba was pissed at his ex because she attempted to switch their children to a different school. While the ex was driving their kids in her VW beetle, Dealba pulled alongside and rammed the passenger side of his car into the driver's side of her beetle a couple of times. The ex had to grab the steering wheel tightly to resist her beetle veering into cars parked on the roadside.
At trial Dealba went down on assault with a deadly weapon, the car, and domestic battery. On appeal, the issue is whether substantial evidence supported the battery charge. Dealba argued that he did not touch his ex, his car did not touch his ex (his car touched her car); therefore there was no touching, and without a touching there can be no battery.
The panel disagrees and affirms the battery count. Their conclusion is correct, but their reasoning is ill-thought out and will create problems. They could and should have gone with a more straight-forward analysis.
The panel's mistake is to take Dealba's bait of skipping from the language in the statute (the law) to the jury instructions (not the law). In California, battery is the "willful and unlawful use of force . . . upon the person of another." Force is the vector product of mass and acceleration. When Dealba rammed his car into that of his ex, he used force upon her. Any high school physics student knows this (If I pick up a carrycot containing a baby and swing the carrycot, I am exerting force upon the baby, even if the baby remains in the same position within the carrycot.). It should have been game over at this point.
The model jury instruction for battery uses the word "touching" in place of force. It is a semantic substitution intended to make the element of force more understandable to lay juries. But this substitution is unnecessary for purposes of statutory analysis by jurists. All the statute requires is force. And when one car hits another and leaves tire marks and scratches upon the exterior of the rammed car, force has been applied to the rammed car and those inside it my fine justices.
Instead of leaving it at that, this panel unwisely ignores the obvious force in ramming the car and instead finds the ex was "touched" by Dealba when his ramming caused her car to convert the force from the ramming into increased torque on the steering wheel she was holding and that this increase in the force required to keep the wheel straight was the actual battery.
Not only is this extra step logically unnecessary, it is dangerous. If the ex had taken her hands off the steering wheel when Dealba was ramming her car, wouldn't she still be a victim of a battery? By the panel's reasoning, the answer is gelastically "no".
At trial Dealba went down on assault with a deadly weapon, the car, and domestic battery. On appeal, the issue is whether substantial evidence supported the battery charge. Dealba argued that he did not touch his ex, his car did not touch his ex (his car touched her car); therefore there was no touching, and without a touching there can be no battery.
The panel disagrees and affirms the battery count. Their conclusion is correct, but their reasoning is ill-thought out and will create problems. They could and should have gone with a more straight-forward analysis.
The panel's mistake is to take Dealba's bait of skipping from the language in the statute (the law) to the jury instructions (not the law). In California, battery is the "willful and unlawful use of force . . . upon the person of another." Force is the vector product of mass and acceleration. When Dealba rammed his car into that of his ex, he used force upon her. Any high school physics student knows this (If I pick up a carrycot containing a baby and swing the carrycot, I am exerting force upon the baby, even if the baby remains in the same position within the carrycot.). It should have been game over at this point.
The model jury instruction for battery uses the word "touching" in place of force. It is a semantic substitution intended to make the element of force more understandable to lay juries. But this substitution is unnecessary for purposes of statutory analysis by jurists. All the statute requires is force. And when one car hits another and leaves tire marks and scratches upon the exterior of the rammed car, force has been applied to the rammed car and those inside it my fine justices.
Instead of leaving it at that, this panel unwisely ignores the obvious force in ramming the car and instead finds the ex was "touched" by Dealba when his ramming caused her car to convert the force from the ramming into increased torque on the steering wheel she was holding and that this increase in the force required to keep the wheel straight was the actual battery.
Not only is this extra step logically unnecessary, it is dangerous. If the ex had taken her hands off the steering wheel when Dealba was ramming her car, wouldn't she still be a victim of a battery? By the panel's reasoning, the answer is gelastically "no".
Friday, December 4, 2015
P. v. Lexington Nat. Ins. Corp.: A Bail Bond is Effectively Exonerated Upon a Bail Increase.
Lexington National is an insurance company whose business includes acting as a surety of bail bonds. One Mr. Cisneros was charged with domestic violence crimes and his bail was set at 20K. Lexington posted a 20K bond on his behalf and Cisneros was released from custody.
At the conclusion of Cisneros' preliminary examination, the magistrate increased Cisneros' bail from 20K to 100K. However the magistrate did not immediately remand him, rather she allowed him to remain out of custody and gave Cisneros a week to arrange to post the larger amount. Cisneros never posted the 100K and never returned to court. Lexington's 20K bond was ordered forfeited and they appealed.
The Sixth District reverses, agreeing with Lexington that once the magistrate raised Cisneros' bail, allowing him to remain out of custody violated the terms of the 20K bond and rendered it void. In a helpful analogy, the opinion describes bail in terms of "offer and acceptance", the bone and sinew of first year contract law classes. The government makes an offer to release the defendant should a surety post the bail amount. A surety accepts the government's offer by posting the bail amount. When the magistrate upped the "offer" to 100K, the previous 20K contract was void. It was legally impossible for Lexington's 20K bond to function as an acceptance to the magistrate's offer of 100K.
What this case really illustrates is the lack of pragmatism within the bail statutes. In the old days, bail served the purpose of insuring a defendant would show up to court. Then it was determined that the primary purpose of bail would be public safety and judges were supposed to set bail at an amount that would protect the public, an imbecilic notion. No one with a functioning frontal lobe would accept that a dangerous person who had posted 30K in bail is somehow less dangerous than if he had posted 100K. This because the consequences of committing a crime while on bail are completely independent of the amount of bail bond posted. Once a defendant pays his bond premium, his financial obligation is over. Should he commit more crimes while on bail, he is not required to pay a crime surcharge. Deterrence from committing additional crimes while on bail derives from wanting to avoid being taken back to jail upon arrest for a new offense (a consequence independent of the amount of bond posted) and the exposure to additional criminal penalties.
Indeed the only real way in which the setting of bail can protect the public is when bail is set at an amount the defendant cannot afford. Then defendant stays in the jail, and the public is protected. Raising bail to an amount a defendant is capable of posting does nothing to protect the public. That is why the magistrate's decision in this case is confusing. Apparently she heard something at the preliminary examination that caused her to believe Cisneros was a greater danger to public safety than previously thought. Okay, but if that was true, she would have raised the bail to an amount she believed Cisneros could not post. Raising the bail amount to an amount she believed Cisnero's might be able to post benefits no one (except possibly the insurance company). Cisernos' alleged victim is no safer with a 100K bond sitting in the file than with a 20K bond. So if public safety required Cisneros' bail to be increased, why did the Magistrate raise it to an amount she believed he may be able to post? And why would she allow him to remain out on 20K for a week?
One of two things can be true here. Either Cisneros is so dangerous as to require preventative detention, in which case his bail could be set so high as to insure he remains in custody, or he he is not and should remain out on his original bail. The middle ground, raising bail, but at an amount you suspect the defendant may be able to pay, is nonsensical. But that's the law here in California.
At the conclusion of Cisneros' preliminary examination, the magistrate increased Cisneros' bail from 20K to 100K. However the magistrate did not immediately remand him, rather she allowed him to remain out of custody and gave Cisneros a week to arrange to post the larger amount. Cisneros never posted the 100K and never returned to court. Lexington's 20K bond was ordered forfeited and they appealed.
The Sixth District reverses, agreeing with Lexington that once the magistrate raised Cisneros' bail, allowing him to remain out of custody violated the terms of the 20K bond and rendered it void. In a helpful analogy, the opinion describes bail in terms of "offer and acceptance", the bone and sinew of first year contract law classes. The government makes an offer to release the defendant should a surety post the bail amount. A surety accepts the government's offer by posting the bail amount. When the magistrate upped the "offer" to 100K, the previous 20K contract was void. It was legally impossible for Lexington's 20K bond to function as an acceptance to the magistrate's offer of 100K.
What this case really illustrates is the lack of pragmatism within the bail statutes. In the old days, bail served the purpose of insuring a defendant would show up to court. Then it was determined that the primary purpose of bail would be public safety and judges were supposed to set bail at an amount that would protect the public, an imbecilic notion. No one with a functioning frontal lobe would accept that a dangerous person who had posted 30K in bail is somehow less dangerous than if he had posted 100K. This because the consequences of committing a crime while on bail are completely independent of the amount of bail bond posted. Once a defendant pays his bond premium, his financial obligation is over. Should he commit more crimes while on bail, he is not required to pay a crime surcharge. Deterrence from committing additional crimes while on bail derives from wanting to avoid being taken back to jail upon arrest for a new offense (a consequence independent of the amount of bond posted) and the exposure to additional criminal penalties.
Indeed the only real way in which the setting of bail can protect the public is when bail is set at an amount the defendant cannot afford. Then defendant stays in the jail, and the public is protected. Raising bail to an amount a defendant is capable of posting does nothing to protect the public. That is why the magistrate's decision in this case is confusing. Apparently she heard something at the preliminary examination that caused her to believe Cisneros was a greater danger to public safety than previously thought. Okay, but if that was true, she would have raised the bail to an amount she believed Cisneros could not post. Raising the bail amount to an amount she believed Cisnero's might be able to post benefits no one (except possibly the insurance company). Cisernos' alleged victim is no safer with a 100K bond sitting in the file than with a 20K bond. So if public safety required Cisneros' bail to be increased, why did the Magistrate raise it to an amount she believed he may be able to post? And why would she allow him to remain out on 20K for a week?
One of two things can be true here. Either Cisneros is so dangerous as to require preventative detention, in which case his bail could be set so high as to insure he remains in custody, or he he is not and should remain out on his original bail. The middle ground, raising bail, but at an amount you suspect the defendant may be able to pay, is nonsensical. But that's the law here in California.
People v. Denard: Foreign Convictions and the Least Adjudicate Elements Test.
A jury convicted Mr. Denard of breaking into an Ace Hardware store and purloining 15K worth of merchandise, a violation of California Penal Code section 459, second degree burglary. Denard waived his right to a jury trial as to whether he had two prior "strike" convictions out of Florida. The trial court found that Denard's Florida convictions for "burglary of a dwelling" and "second degree felony manslaughter" each qualified as "strikes" under California law and sentenced Denard accordingly.
A Second District panel reverses on the strike findings and remands for resentencing.
The "burglary of a dwelling" conviction was evinced by an information, an order of conviction, an order of judgment, and a commitment order. None of the evidence contained any factual basis for the conviction. With no factual information, the issue became whether violating Florida's crime of "burglary of a dwelling" would necessarily constitute a violation of California's crime of residential burglary (a strike).
The answer is "no". Florida's crime encompasses a broader range of acts than California such that a person could commit Florida's crime of "burglary dwelling" without committing California's crime of "residential burglary". So without any factual information within the record of conviction, the trial court's finding was not supported by substantial evidence.
However as to the Florida "second degree felony manslaughter", the people introduced not just the documents eluded to above as in the burglary case, but a policeman's affidavit of probable cause to arrest Denard for first degree murder and armed burglary. Denard's lawyer did not object to their admission.
The panel holds that the trial court should not have considered the affidavit because it is not part of the "record of conviction", rather it was a non-judicial document containing multiple hearsay which was never incorporated into the record of conviction (distinguishing cases where a defendant stipulates to similar documents as providing the factual basis for his plea).
Using the appellate court's discretion to consider a Constitutional violation despite a lack of objection in the trial court, the panel finds that Denard's Sixth Amendment rights were violated when the trial court considered the affidavit. With the affidavit out, the remaining evidence only proved Denard was convicted of violating Florida's "second degree felony manslaughter", a crime which encompasses acts beyond those prohibited by California's voluntary manslaughter statute. As with the burglary count, as there was no evidence Denard's manslaughter conviction was based upon facts which would have necessarily constituted a voluntary manslaughter had they happened in California, the trial court's finding is reversed for lack of substantial evidence.
A Second District panel reverses on the strike findings and remands for resentencing.
The "burglary of a dwelling" conviction was evinced by an information, an order of conviction, an order of judgment, and a commitment order. None of the evidence contained any factual basis for the conviction. With no factual information, the issue became whether violating Florida's crime of "burglary of a dwelling" would necessarily constitute a violation of California's crime of residential burglary (a strike).
The answer is "no". Florida's crime encompasses a broader range of acts than California such that a person could commit Florida's crime of "burglary dwelling" without committing California's crime of "residential burglary". So without any factual information within the record of conviction, the trial court's finding was not supported by substantial evidence.
However as to the Florida "second degree felony manslaughter", the people introduced not just the documents eluded to above as in the burglary case, but a policeman's affidavit of probable cause to arrest Denard for first degree murder and armed burglary. Denard's lawyer did not object to their admission.
The panel holds that the trial court should not have considered the affidavit because it is not part of the "record of conviction", rather it was a non-judicial document containing multiple hearsay which was never incorporated into the record of conviction (distinguishing cases where a defendant stipulates to similar documents as providing the factual basis for his plea).
Using the appellate court's discretion to consider a Constitutional violation despite a lack of objection in the trial court, the panel finds that Denard's Sixth Amendment rights were violated when the trial court considered the affidavit. With the affidavit out, the remaining evidence only proved Denard was convicted of violating Florida's "second degree felony manslaughter", a crime which encompasses acts beyond those prohibited by California's voluntary manslaughter statute. As with the burglary count, as there was no evidence Denard's manslaughter conviction was based upon facts which would have necessarily constituted a voluntary manslaughter had they happened in California, the trial court's finding is reversed for lack of substantial evidence.
In re J.L. : A Public High School Locker Room is Not a "Commercial Establishment" Under the New Shoplifting Statute
In early 2014, young master J.L. cut class with a friend and went into the high school's locker room. There he picked open a locker with a bent paper clip and took a cell phone. J.L. confessed to the school cop and gave up the phone. He was arrested for, charged with, and later admitted to, committing felony second degree burglary. J.L. was made a ward of the court and sent home on probation.
Following the November 4, 2015, passage of Proposition 47, J.L. returned to court and petitioned for his felony burglary, Penal Code 459, to be reduced to shoplifting, Penal Code 459.5. The trial court denied J.L.'s petition and an appeal followed.
A panel from the Second District affirms. Shoplifting is the entrance into a commercial establishment with an intent to commit larceny while the establishment is open during regular business hours, where the value of property you take, or intend to take, is 950 bucks or less. The case turns on whether the high school is a "commercial establishment" as understood within PC 459.5. The panel considers various common and legal usages of the word "commercial" as an adjective pertaining to the buying or selling of goods or services, and determines a high school locker room is not a commercial establishment. Sounds right. There is dicta hinting that perhaps a different result might occur if the theft was from a cafeteria or school book store.
This case gives rise to interesting hypotheticals. Here the school was a public school, but what if the school was private and for-profit? Would not the school be engaged in the selling of educational services and thus a "commercial establishment"? What about the locker room of a hospital that is affiliated with a public university? What if a person enters the hospital with a clean mind, but enters the locker room within with felonious intent? What if a customer sneaks into the employee break room of a retail store and fossicks through the employees' lockers? If the customer's intent did not arise until he saw the break room, would that fall under shoplifting?
Following the November 4, 2015, passage of Proposition 47, J.L. returned to court and petitioned for his felony burglary, Penal Code 459, to be reduced to shoplifting, Penal Code 459.5. The trial court denied J.L.'s petition and an appeal followed.
A panel from the Second District affirms. Shoplifting is the entrance into a commercial establishment with an intent to commit larceny while the establishment is open during regular business hours, where the value of property you take, or intend to take, is 950 bucks or less. The case turns on whether the high school is a "commercial establishment" as understood within PC 459.5. The panel considers various common and legal usages of the word "commercial" as an adjective pertaining to the buying or selling of goods or services, and determines a high school locker room is not a commercial establishment. Sounds right. There is dicta hinting that perhaps a different result might occur if the theft was from a cafeteria or school book store.
This case gives rise to interesting hypotheticals. Here the school was a public school, but what if the school was private and for-profit? Would not the school be engaged in the selling of educational services and thus a "commercial establishment"? What about the locker room of a hospital that is affiliated with a public university? What if a person enters the hospital with a clean mind, but enters the locker room within with felonious intent? What if a customer sneaks into the employee break room of a retail store and fossicks through the employees' lockers? If the customer's intent did not arise until he saw the break room, would that fall under shoplifting?
Thursday, December 3, 2015
People v. Gaines: Vague Probation Conditions or When is Alcohol the "Chief" Item of Sale?
Mr. Gains accepted a grant of probation. Among his terms of probation were: that he not go to any establishment where alcohol is the “chief item of
sale,”; that he not use or possess any “dangerous drugs,”; and, that he not own or possess any weapon that
can be concealed on his person.
Gains's appeal challenges the Constitutionality of these three terms. The First District holds the first two terms are unconstitutionally vague and reverses in part.
The test is whether a term is so vague as to risk a probationer unknowingly violating it; or, stated another way, whether a reasonable person would know what the term prohibits. I am not sure what the alcohol term prohibits. What is "chief item of sale"? Does it mean the business makes the majority of its profit from alcohol sales? Then, according to my friends in the restaurant business, most upscale eateries are off limits. Or does it mean alcohol is most-often purchased item? Then a rock concert may be off-limits. If a defendant is to avoid bars and liquors stores, then just say that.
The "dangerous drugs" term is also tosh. Dangerous to whom? Insulin is dangerous to hypoglycemics. Tylenol, taken too often, can kill your liver. If you mean controlled substances, just say it.
In my time as a criminal defense attorney, I have never seen a list of probation terms that could be argued to have originated from anyone possessing rational thought. Just as the comedic great George Carlin condensed the 10 Commandments down to 2, anyone semi-lettered can condense most 20+ term probation lists down to a list that can be counted on one hand. The term "obey all laws" always begins the list which then goes on to individually prohibit the violation of specific laws. Obeying all laws necessarily includes not possessing controlled substances without a valid prescription, possessing a firearm as a felon, trafficking in controlled substances, possessing illegal weapons, driving without a license and insurance, etc. So why waste time and risk confusion with these pleonasms?
Even more maddening is when probation terms directly conflict with one another. In court the other day, a gentleman's probation conditions included that he: [1] not go upon the grounds of any jail or prison, [2] serve 180 days in the county jail, [3] not associate with people he suspected were drug users, [4] enroll in and complete a drug rehabilitation program, and [5] not associate with people he knew were on probation or parole,
Clearly this man cannot comply with all these conditions. He must use his own discretion to determine which term he should violate in order to comply with its converse. Any intelligent person will come to the conclusion that if it is impossible to comply with all the terms, the court doesn't truly mean what is says, a dangerous message to send.
Is it that difficult to draft a concise list of consistent,clear terms that will keep a defendant out of trouble? I surmise the Courts of Appeal ask themselves the same question when yet another one of these cases hits their desk.
Gains's appeal challenges the Constitutionality of these three terms. The First District holds the first two terms are unconstitutionally vague and reverses in part.
The test is whether a term is so vague as to risk a probationer unknowingly violating it; or, stated another way, whether a reasonable person would know what the term prohibits. I am not sure what the alcohol term prohibits. What is "chief item of sale"? Does it mean the business makes the majority of its profit from alcohol sales? Then, according to my friends in the restaurant business, most upscale eateries are off limits. Or does it mean alcohol is most-often purchased item? Then a rock concert may be off-limits. If a defendant is to avoid bars and liquors stores, then just say that.
The "dangerous drugs" term is also tosh. Dangerous to whom? Insulin is dangerous to hypoglycemics. Tylenol, taken too often, can kill your liver. If you mean controlled substances, just say it.
In my time as a criminal defense attorney, I have never seen a list of probation terms that could be argued to have originated from anyone possessing rational thought. Just as the comedic great George Carlin condensed the 10 Commandments down to 2, anyone semi-lettered can condense most 20+ term probation lists down to a list that can be counted on one hand. The term "obey all laws" always begins the list which then goes on to individually prohibit the violation of specific laws. Obeying all laws necessarily includes not possessing controlled substances without a valid prescription, possessing a firearm as a felon, trafficking in controlled substances, possessing illegal weapons, driving without a license and insurance, etc. So why waste time and risk confusion with these pleonasms?
Even more maddening is when probation terms directly conflict with one another. In court the other day, a gentleman's probation conditions included that he: [1] not go upon the grounds of any jail or prison, [2] serve 180 days in the county jail, [3] not associate with people he suspected were drug users, [4] enroll in and complete a drug rehabilitation program, and [5] not associate with people he knew were on probation or parole,
Clearly this man cannot comply with all these conditions. He must use his own discretion to determine which term he should violate in order to comply with its converse. Any intelligent person will come to the conclusion that if it is impossible to comply with all the terms, the court doesn't truly mean what is says, a dangerous message to send.
Is it that difficult to draft a concise list of consistent,clear terms that will keep a defendant out of trouble? I surmise the Courts of Appeal ask themselves the same question when yet another one of these cases hits their desk.
Wednesday, December 2, 2015
People v. Amaya: A Proposition 47 Petition May be Oral
Mr. Amaya pled to numerous counts of felony commercial burglary in 2012. In December of 2014, while in court on a probation violation, Amaya asked the judge to "reduce 'this' to a misdemeanor under Proposition 47." The judge denied the motion and Amaya appealed.
The issue is whether Amaya's statement constituted a "petition" under PC 1170.18. A panel from the Second District holds it does and remands the case to the trial court to consider Amaya's petition.
The issue is whether Amaya's statement constituted a "petition" under PC 1170.18. A panel from the Second District holds it does and remands the case to the trial court to consider Amaya's petition.
Tuesday, December 1, 2015
People v. Tran: A Judge May Consider Facts within a Presentence Report in Ruling on a PC 17B Motion.
Mr. Tran got into a fight with one Mr. Dao. Dao came to Tran’s front door and shot into
Tran’s home while Tran’s children and baby mamma were inside. In retaliation, Tran went to Dao’s place and
into it shot.
Tran was charged with shooting into an inhabited dwelling,
PC 246, a “strike” offense. A plea bargain was reached whereby Tran would
plead guilty to felony assault by means likely to cause great bodily injury,
formerly PC 245(a)(1), a “non-strike” offense.
Tran received a three-year term of probation and completed his probation successfully.
He then returned to court and moved the court to do two
things; [1] reduce his conviction to a misdemeanor under PC 17B, and [2] allow Tran to withdraw his guilty plea and order the matter dismissed under 1203.4 (often
incorrectly called an “expungement”).
The court denied both motions, telling Tran to come back after one
year.
One year on, Tran came back to court, making the same two
motions. The court granted the 1203.4
relief, but denied the motion to reduce the matter to a misdemeanor under 17B,
making the rather foolish remark that he was denying the motion because there
is “[t]oo much shooting going on in Sacramento [C]ounty. I sign a ton of
warrants for people getting shot at. Enough is enough.” (I hope for the sake of
the people of Sacramento County this comment was a transitory lapsus linguae
and that their judges do not ordinarily use subsequent unrelated conduct by
unrelated persons as a legal basis for ruling on motions).
Tran came back once more and made another 17B motion. A judge again denied the motion, but this
time gave a more legally acceptable reason; that Tran’s conduct in shooting
into Dao’s house was too serious to be ruled a misdemeanor. Tran appealed arguing that the court improperly
considered the recitation of facts in Probation’s presentence report. Tran argued that the trial court could only
consider the record of conviction (which excludes post-plea reports) in making
its ruling, analogizing Tran’s case to cases involving a court’s determination
of whether a previous conviction constitutes a “strike” (where the court is
limited to the record of conviction).
This panel distinguishes the 17B motion here from judicial determinations of whether a past conviction constitutes a strike and affirms. A court may use the facts within a presentence probation report in ruling on a 17B motion.
Monday, November 30, 2015
Mason v. Superior Court: Long Running Judicial Schism on the Mens Rea for Arson
The opinion and dissent in this case are unusual. Unusual because they are authored by the same justice. Yes, Justice Blease writes an opinion affirming the denial of Mason's motion to set aside the indictment. But Justice Blease does not agree with the California Supreme Court's controlling cases and while his opinion follows these cases, he dissents from his own opinion, noting that while he is "bound" by the higher court's decisions, he is not "gagged" by them. This is one worth reading.
In the summer of 2012, Mr. Mason, his family, and his dog, joined some friends at a swimming hole at the bottom on a deep granite canyon. When everyone was out of the swimming hole, Mason lit an illegal firework and tossed it into the water. Unfortunately the firework launched sparks 27 feet in the air which landed on some dry vegetation and started a fire. Mason tried to put out the fire, but couldn't. The fire spread and burned 2,650 acres of land, including a cabin. While fighting the fire, a fireman broke his arm. Mason later gave a tearful confession.
The prosecutor wanted Mason for arson, with enhancements for the fireman's broken arm and the cabin. A magistrate dismissed the arson charges, instead holding Mason to answer for the lesser offense of recklessly causing the fire. The prosecutor then took the case before a grand jury and obtained an indictment for the arson charges. Mason moved the court to set aside the indictment. The trial court denied Mason's motion whereupon Mason filed a petition for a writ of mandate.
The central issue, raised via a claim of improper instruction of the grand jury, is the proper mental state requirement for arson, PC 451. Specifically, the mental state required for the third of three acts prohibited by the arson statute.
It is arson to [1] set fire to, [2] burn, or [3] cause to be burned, any structure, forest land or property. These three clauses define the prohibited acts under the arson statute, but what is the required mental state that must accompany the act(s)? According to two California Supreme Court opinions written by Justice Chin, the mental state required for act [3] is an intent to do the act that causes the burning, accompanied by an objective knowledge that the direct, natural, and highly probable consequence of such act is the burning of a structure, forest land, or property. This is where Justice Blease believes the California Supreme Court has gone off the rails. Blease's interpretation is that since arson is a general intent crime, and a general intent crime requires an intent to do the prohibited act, the intent required for arson under act [3] is an intent to cause a structure, forest land, or property, to be burned.
Blease's dissatisfaction with Chin's imaginative editing of PC 451 has some history. Blease authored In re Stonewall F. (1989) 208 Cal. App. 3d 1054, in which two youths lit some leaves on fire, the fire eventually burning a school building. That opinion held arson was a general intent crime, requiring an intent to do the prohibited act, causing the burning of the school building. Since the youths did not intent to cause the school building to burn, they lacked the required mental state.
A decade on, another panel of the Third District (which did not include Justice Blease), used Stonewall F. to reverse a trial court's exclusion of evidence of voluntary intoxication in the case of People v. Atkins (1999) 88 Cal. Rptr. 2d 176, reversed and ordered depublished. Since voluntary intoxication evidence can be admitted to negate specific (not general) intent, this holding was erroneous. The California Supreme Court granted review and reversed with Justice Chin writing the opinion, People v. Atkins (2001) 25 Cal. 4th 76.
Instead of simply saying voluntary intoxication evidence is irrelevant in relation to general intent crimes, arson is a general intent crime, and therefore Atkins must be reversed, Chin, for some reason, sought to create an issue where there really was none, and then through an unnecessarily long and tortured juggling of legal issues, created a new crime out of whole cloth. Justice Chin unconvincingly changed the actus reus from "cause the burning of a structure, forest land, or property" (explicit in PC 451) to the "act that causes" the burning of a structure, forest land, or property.
As arson is a general intent crime, meaning the required intent is that to do the prohibited act, when Chin changed the actus reus, he necessarily changed the required intent. No longer does arson require an intent to cause property to burn, rather it just requires the intent to do the act that causes the property to burn. If an automobile driver flicks a cigarette butt out the window and starts a forest fire, the test for whether he was guilty of arson would not be whether he intended to cause the forest to burn, but only whether he intended to flick the butt.
But a problem with redefining the actus reus this way is that it makes arson a crime of strict liability. So the California Supreme Court, via judicial fiat, shoehorned into the mental state an additional requirement of objective knowledge that doing the "act that causes" will directly, naturally, and highly probably, cause a structure, forest, or property to burn.
Justice Blease believes the California Supreme Court has made an unnecessary mess of the arson statute. He believes that his opinion in Stonewall F. was the correct interpretation of PC 451 and he uses his dissent to so say. And his legal reasoning is pretty convincing.
In the summer of 2012, Mr. Mason, his family, and his dog, joined some friends at a swimming hole at the bottom on a deep granite canyon. When everyone was out of the swimming hole, Mason lit an illegal firework and tossed it into the water. Unfortunately the firework launched sparks 27 feet in the air which landed on some dry vegetation and started a fire. Mason tried to put out the fire, but couldn't. The fire spread and burned 2,650 acres of land, including a cabin. While fighting the fire, a fireman broke his arm. Mason later gave a tearful confession.
The prosecutor wanted Mason for arson, with enhancements for the fireman's broken arm and the cabin. A magistrate dismissed the arson charges, instead holding Mason to answer for the lesser offense of recklessly causing the fire. The prosecutor then took the case before a grand jury and obtained an indictment for the arson charges. Mason moved the court to set aside the indictment. The trial court denied Mason's motion whereupon Mason filed a petition for a writ of mandate.
The central issue, raised via a claim of improper instruction of the grand jury, is the proper mental state requirement for arson, PC 451. Specifically, the mental state required for the third of three acts prohibited by the arson statute.
It is arson to [1] set fire to, [2] burn, or [3] cause to be burned, any structure, forest land or property. These three clauses define the prohibited acts under the arson statute, but what is the required mental state that must accompany the act(s)? According to two California Supreme Court opinions written by Justice Chin, the mental state required for act [3] is an intent to do the act that causes the burning, accompanied by an objective knowledge that the direct, natural, and highly probable consequence of such act is the burning of a structure, forest land, or property. This is where Justice Blease believes the California Supreme Court has gone off the rails. Blease's interpretation is that since arson is a general intent crime, and a general intent crime requires an intent to do the prohibited act, the intent required for arson under act [3] is an intent to cause a structure, forest land, or property, to be burned.
Blease's dissatisfaction with Chin's imaginative editing of PC 451 has some history. Blease authored In re Stonewall F. (1989) 208 Cal. App. 3d 1054, in which two youths lit some leaves on fire, the fire eventually burning a school building. That opinion held arson was a general intent crime, requiring an intent to do the prohibited act, causing the burning of the school building. Since the youths did not intent to cause the school building to burn, they lacked the required mental state.
A decade on, another panel of the Third District (which did not include Justice Blease), used Stonewall F. to reverse a trial court's exclusion of evidence of voluntary intoxication in the case of People v. Atkins (1999) 88 Cal. Rptr. 2d 176, reversed and ordered depublished. Since voluntary intoxication evidence can be admitted to negate specific (not general) intent, this holding was erroneous. The California Supreme Court granted review and reversed with Justice Chin writing the opinion, People v. Atkins (2001) 25 Cal. 4th 76.
Instead of simply saying voluntary intoxication evidence is irrelevant in relation to general intent crimes, arson is a general intent crime, and therefore Atkins must be reversed, Chin, for some reason, sought to create an issue where there really was none, and then through an unnecessarily long and tortured juggling of legal issues, created a new crime out of whole cloth. Justice Chin unconvincingly changed the actus reus from "cause the burning of a structure, forest land, or property" (explicit in PC 451) to the "act that causes" the burning of a structure, forest land, or property.
As arson is a general intent crime, meaning the required intent is that to do the prohibited act, when Chin changed the actus reus, he necessarily changed the required intent. No longer does arson require an intent to cause property to burn, rather it just requires the intent to do the act that causes the property to burn. If an automobile driver flicks a cigarette butt out the window and starts a forest fire, the test for whether he was guilty of arson would not be whether he intended to cause the forest to burn, but only whether he intended to flick the butt.
But a problem with redefining the actus reus this way is that it makes arson a crime of strict liability. So the California Supreme Court, via judicial fiat, shoehorned into the mental state an additional requirement of objective knowledge that doing the "act that causes" will directly, naturally, and highly probably, cause a structure, forest, or property to burn.
Justice Blease believes the California Supreme Court has made an unnecessary mess of the arson statute. He believes that his opinion in Stonewall F. was the correct interpretation of PC 451 and he uses his dissent to so say. And his legal reasoning is pretty convincing.
Wednesday, November 25, 2015
In re J.B. : Probation Condition Requiring Minor to Allow Warrantless Searches of His Cellphone Found Unreasonable
Young J.B. went into a Sears department store and tried to steal a shirt. For this, he is made a ward of the court and placed on probation. The judge orders, as a term of probation, that J.B. submit to a search of his "electronics including passwords" (I assume the judge meant J.B. had to disclose his passwords). J.B. objected to this term because there was no evidence to support the theory that J.B.'s electronics were related to future criminality.
A panel from the First District agrees. J.B. can keep the digital portion of his life private.
A panel from the First District agrees. J.B. can keep the digital portion of his life private.
Tuesday, November 24, 2015
People v. Peacock: Another Proposition 47 Opinion Holding 496d Conviction Ineligible for PC 1170.18 Relief
This is another Fourth District opinion holding that a conviction for receiving a stolen automobile, PC 496d, is not eligible for reduction to a misdemeanor under the ballot initiative Proposition 47 passed in November of 2014. This panel's reasoning follows that in People v. Garness.
For some reason, the District courts make these case more difficult than they need be. Penal Code section 1170.18 is the statute at issue. It reads, in pertinent part;
For some reason, the District courts make these case more difficult than they need be. Penal Code section 1170.18 is the statute at issue. It reads, in pertinent part;
A person currently serving a sentence for a conviction . . . who would have been guilty of a misdemeanor . . . had this act been in effect at the time of the offense
may petition for a recall of sentence . . [to] request resentencing in accordance with Sections 11350,
4
11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496,
or 666 of the Penal Code . . . .
This language can be divided in two. Part one states the requirement for a valid petition, which is that had you committed the crime of conviction today it would be a straight misdemeanor. The second part states that if your answer to the first part is "yes", you may request resentencing under one of the applicable code sections enumerated.
The panel makes it unnecessarily complicated by treating the second portion, the enumerated code sections under which a eligible petitioner may be resentenced, as the test for eligibility. This creates unnecessary labor and confusion. The true issue is clear. If Mr. Peacock received stolen ATVs today, would his 496d crime be a straight misdemeanor? Nope. And all that is required is to read the current version of section 496d which clearly says the crime is a wobbler. Easy.
Monday, November 23, 2015
People v. Lynn: PC 1170.126 and Sentencing on Separate Counts
Mr. Lynn had four prior "strikes" (convictions for serious and/or violent felonies). He was subsequently found guilty of a robbery, PC 211 (a strike), and attempted grand theft, PC 664/487(c) (not a strike). Under the old law in place at the time of Lynn's initial sentencing, someone with two or more strikes who subsequently is convicted of any felony (strike or non-strike), could be sentenced to 25-life. As Lynn had four prior strikes, he was eligible for 25-life sentences on the robbery and on the attempted grand theft.
The sentencing judge sentenced Lynn to 35-life on the robbery (25-life on the robbery, plus 10 years for additional recidivist enhancements) and 25-life on the attempted grand theft. The two sentences were ordered to run concurrent.
Subsequently the voters changed the three-strikes law, conforming it to its name. Now the triggering conviction must also be a strike. Prisoners who had been sentenced to life sentences under the old law, who would not now be eligible for life sentences, can now ask the court to reduce their sentences to conform to the new law, PC 1170.126.
Lynn asked the court to reduce his grand theft sentence of 25-life since his attempted grand theft conviction was not a strike, meaning under the current law Lynn couldn't get a life sentence. The trial court denied his 1170.126 petition because it was part of a case that also contained a strike, the robbery. Lynn appealed.
In the interim, the California Supreme Court held that each count must be considered individually, People v. Johnson. Consistent with Johnson, this Second District panel reverses and remands to the trial court for further proceedings on Lynn's 1170.126 petition as to the attempted grand theft count. The 35-life sentence on the robbery is unaffected.
The sentencing judge sentenced Lynn to 35-life on the robbery (25-life on the robbery, plus 10 years for additional recidivist enhancements) and 25-life on the attempted grand theft. The two sentences were ordered to run concurrent.
Subsequently the voters changed the three-strikes law, conforming it to its name. Now the triggering conviction must also be a strike. Prisoners who had been sentenced to life sentences under the old law, who would not now be eligible for life sentences, can now ask the court to reduce their sentences to conform to the new law, PC 1170.126.
Lynn asked the court to reduce his grand theft sentence of 25-life since his attempted grand theft conviction was not a strike, meaning under the current law Lynn couldn't get a life sentence. The trial court denied his 1170.126 petition because it was part of a case that also contained a strike, the robbery. Lynn appealed.
In the interim, the California Supreme Court held that each count must be considered individually, People v. Johnson. Consistent with Johnson, this Second District panel reverses and remands to the trial court for further proceedings on Lynn's 1170.126 petition as to the attempted grand theft count. The 35-life sentence on the robbery is unaffected.
In re Amanda A: Expressing an Intent to Obstruct a Peace Officer in the Future Does Not a 148 Make
It is difficult to read this opinion without a tissue in hand. That Amanda A. has suffered through a "troubled history" is ineffectively euphemistic (and proof that Justice Kline should be introduced to Peter Meltzer). Any adult who believes criminology a straightforward matter of personal responsibility divorced from human development needs to read this opinion.
Amanda A. was neglected, abused, and exploited for the first 12 years of her life. Then things went downhill. She was raped at age 12 which led to her to run away from home and resulted in her being prostituted on the street by her 28 year old "boyfriend". She was made a dependency ward. As no 13 year old is capable of normal development in such a milieu, her next four years consisted of numerous cycles of running away from group homes, drugs, prostitution, exploitation, and rearrest.
She found herself again locked up in juvenile hall waiting for yet another group home to pick her up pursuant to a court order. When a probation officer visited Amanda to tell her the group home was coming, Amanda told the probation officer that when the group home representative showed up, Amanda intended to refuse to leave juvenile hall. In a rare instance of adult ratiocination in this case, the probation officer calls off the group home to avoid a scene.
The county prosecutor charges Amanda with obstructing a peace officer, PC 148(a)(1), a misdemeanor. The trial judge finds the facts prove the offense beyond a reasonable doubt and Amanda appeals. A pane from the First District reverses. In language hinting they really would have like to affirm, they do not. The holding is that all Amanda did was express an intent to obstruct the probation officer's attempt to effect the court's placement order, she never actually obstructed the probation officer.
In some benighted dicta, the panel suggests probation may have waited for the group home representative to arrive, then should Amanda make good on her promise, her refusal would constitute a righteous 148 (a laudable goal?). It reflects poorly on the panel that they would even imply that, by avoiding an unnecessary conflict and further psychological trauma to a minor, probation officer Webster's judgement was deficient.
Two lessons emerge from this opinion, neither involving the holding. First, the threat of incarceration is unlikely to successfully modify a child's behavior when that child's past environment was far worse. To paraphrase Amanda, "I have everything I need here (juvenile hall)"; no doubt that was not true of her first 12 years. Second, our juvenile justice system is inadequately funded. The saddest part of the opinion, in my opinion, is the sentence stating that after the Superior Court had instructed probation to find a group home with staff qualified to deal with children who had been sexually exploited and sexually traumatized, probation's response was that it was not an option for Amanda because such homes "all had long wait lists".
This is sad for multiple reasons. One that apparently we've decided as a state that it is too expensive to adequately fund treatment for children who have been sexually exploited. Two, that it took until Amanda was 17 for the government (of whom Amanda was a ward most of her life) to look into this option.
Amanda A. was neglected, abused, and exploited for the first 12 years of her life. Then things went downhill. She was raped at age 12 which led to her to run away from home and resulted in her being prostituted on the street by her 28 year old "boyfriend". She was made a dependency ward. As no 13 year old is capable of normal development in such a milieu, her next four years consisted of numerous cycles of running away from group homes, drugs, prostitution, exploitation, and rearrest.
She found herself again locked up in juvenile hall waiting for yet another group home to pick her up pursuant to a court order. When a probation officer visited Amanda to tell her the group home was coming, Amanda told the probation officer that when the group home representative showed up, Amanda intended to refuse to leave juvenile hall. In a rare instance of adult ratiocination in this case, the probation officer calls off the group home to avoid a scene.
The county prosecutor charges Amanda with obstructing a peace officer, PC 148(a)(1), a misdemeanor. The trial judge finds the facts prove the offense beyond a reasonable doubt and Amanda appeals. A pane from the First District reverses. In language hinting they really would have like to affirm, they do not. The holding is that all Amanda did was express an intent to obstruct the probation officer's attempt to effect the court's placement order, she never actually obstructed the probation officer.
In some benighted dicta, the panel suggests probation may have waited for the group home representative to arrive, then should Amanda make good on her promise, her refusal would constitute a righteous 148 (a laudable goal?). It reflects poorly on the panel that they would even imply that, by avoiding an unnecessary conflict and further psychological trauma to a minor, probation officer Webster's judgement was deficient.
Two lessons emerge from this opinion, neither involving the holding. First, the threat of incarceration is unlikely to successfully modify a child's behavior when that child's past environment was far worse. To paraphrase Amanda, "I have everything I need here (juvenile hall)"; no doubt that was not true of her first 12 years. Second, our juvenile justice system is inadequately funded. The saddest part of the opinion, in my opinion, is the sentence stating that after the Superior Court had instructed probation to find a group home with staff qualified to deal with children who had been sexually exploited and sexually traumatized, probation's response was that it was not an option for Amanda because such homes "all had long wait lists".
This is sad for multiple reasons. One that apparently we've decided as a state that it is too expensive to adequately fund treatment for children who have been sexually exploited. Two, that it took until Amanda was 17 for the government (of whom Amanda was a ward most of her life) to look into this option.
Friday, November 20, 2015
People v. Acosta: More Prop 47, Attempted Burglary of a Vehicle is Ineligible for Relief Under 1170.18
This case is pretty straightforward and the decision is no surprise. But you can't blame a guy for trying.
Acosta pled guilty to attempted burglary of a car, a felony under Penal Code section 459. After the November 2014 passage of Proposition 47, he petitioned the trial court to reduce his conviction to a misdemeanor pursuant to PC 1170.18.
Although 1170.18 suffers from logorrhea, the test for eligibility is a simple one: if Acosta committed his crime of conviction today, would it necessarily be a misdemeanor? If so, he is eligible. If not, he is not eligible. And if Acosta committed an attempted burglary of a car today, it would not necessarily be a misdemeanor, it would be a wobbler.
His attempt to shoehorn his offense into the shoplifting statute, PC 459.5, fails. As does his equal protection argument.
Acosta pled guilty to attempted burglary of a car, a felony under Penal Code section 459. After the November 2014 passage of Proposition 47, he petitioned the trial court to reduce his conviction to a misdemeanor pursuant to PC 1170.18.
Although 1170.18 suffers from logorrhea, the test for eligibility is a simple one: if Acosta committed his crime of conviction today, would it necessarily be a misdemeanor? If so, he is eligible. If not, he is not eligible. And if Acosta committed an attempted burglary of a car today, it would not necessarily be a misdemeanor, it would be a wobbler.
His attempt to shoehorn his offense into the shoplifting statute, PC 459.5, fails. As does his equal protection argument.
Thursday, November 19, 2015
People v. Agnew: Implied Consent and the Fourth Amendment
Driving under the influence, a common crime, often results in uncommon Constitutional issues. A general Constitutional rule of the Fourth Amendment is that a search or seizure is per se unreasonable unless the search or seizure was conducted pursuant to a warrant or falls under a recognized exception to the warrant requirement. One recognized exception is when a person voluntarily consents to the search or seizure.
Ordinarily, a person's consent is contemporaneous with the search. For instance, during a traffic stop a police officer may ask you if it's okay with you if she searches your car for drugs or weapons. If you say, "sure, go ahead", you've given consent and the police officer can search your car without a warrant without violating your rights under the Fourth Amendment.
In California, we have something called "implied consent" for drivers. By driving a car in California, you have consented (whether you realize it or not), in advance, to providing a blood, breath, or urine, sample upon valid arrest for DUI. What this means is that the police officer arresting you doesn't need to ask you for consent as does the officer in the example above.
However you can withdraw your implied consent. If you do withdraw your consent, the police officer has to either get a warrant to draw your blood or find another exception to the warrant requirement. But refusing to give a sample will result in the DMV suspending your license.
Here, Mr. Agnew was pulled over for a traffic infraction. The policeman smelled beer on Agnew's breath, and Agnew admitted having imbibed that evening. After arresting Agnew, the policeman told him California law required Agnew to give a blood or breath sample. Angew chose a blood test and was taken to a hospital where his blood was drawn.
Agnew moved to suppress his blood results and the trial court granted his motion. The trial judge found that because the policeman told Agnew that he was legally required to provide a sample, Agnew's consent was not knowing and voluntary, but rather an acquiescence to a claim of authority. Submission to a false claim of lawful authority is not consent. For example, if a policewoman knocks on your door with her pistol drawn and tells you she is coming inside your house, your saying "okay" and stepping aside is not effective consent.
The prosecutor appealed to the appellate division of the Superior Court. The appellate division reverses. They remand to the trial court for a determination in light of the fact that Agnew already consented to the blood draw when he drove a car in California.
The opinion is unnecessarily long, as are most Superior Court appellate decisions (I suspect insecurity). But it is an interesting issue. The implied consent law actually makes the issue whether Agnew withdrew his consent, not whether he gave it. By telling Agnew that "California law requires" it, did the policeman imply that Agnew couldn't withdraw his consent? Actually, it's not California's criminal law that requires Agnew to submit to a test. Agnew cannot be convicted of a crime if he refuses, but is that what the policeman communicated? Even if the policeman directly told Agnew he couldn't refuse, does that negate Agnew's previous consent if his previous consent was voluntary?
DUI opinions are seldom simple.
Ordinarily, a person's consent is contemporaneous with the search. For instance, during a traffic stop a police officer may ask you if it's okay with you if she searches your car for drugs or weapons. If you say, "sure, go ahead", you've given consent and the police officer can search your car without a warrant without violating your rights under the Fourth Amendment.
In California, we have something called "implied consent" for drivers. By driving a car in California, you have consented (whether you realize it or not), in advance, to providing a blood, breath, or urine, sample upon valid arrest for DUI. What this means is that the police officer arresting you doesn't need to ask you for consent as does the officer in the example above.
However you can withdraw your implied consent. If you do withdraw your consent, the police officer has to either get a warrant to draw your blood or find another exception to the warrant requirement. But refusing to give a sample will result in the DMV suspending your license.
Here, Mr. Agnew was pulled over for a traffic infraction. The policeman smelled beer on Agnew's breath, and Agnew admitted having imbibed that evening. After arresting Agnew, the policeman told him California law required Agnew to give a blood or breath sample. Angew chose a blood test and was taken to a hospital where his blood was drawn.
Agnew moved to suppress his blood results and the trial court granted his motion. The trial judge found that because the policeman told Agnew that he was legally required to provide a sample, Agnew's consent was not knowing and voluntary, but rather an acquiescence to a claim of authority. Submission to a false claim of lawful authority is not consent. For example, if a policewoman knocks on your door with her pistol drawn and tells you she is coming inside your house, your saying "okay" and stepping aside is not effective consent.
The prosecutor appealed to the appellate division of the Superior Court. The appellate division reverses. They remand to the trial court for a determination in light of the fact that Agnew already consented to the blood draw when he drove a car in California.
The opinion is unnecessarily long, as are most Superior Court appellate decisions (I suspect insecurity). But it is an interesting issue. The implied consent law actually makes the issue whether Agnew withdrew his consent, not whether he gave it. By telling Agnew that "California law requires" it, did the policeman imply that Agnew couldn't withdraw his consent? Actually, it's not California's criminal law that requires Agnew to submit to a test. Agnew cannot be convicted of a crime if he refuses, but is that what the policeman communicated? Even if the policeman directly told Agnew he couldn't refuse, does that negate Agnew's previous consent if his previous consent was voluntary?
DUI opinions are seldom simple.
People v. McGowan: Penal Code section 911 and the Crime of Possessing a Branded Milk Crate
I advise all people to never waive their right to consult an attorney before speaking with police. In the rare circumstance I find myself among polite society, I usually receive a retort of, "why, if I haven't done anything wrong?". This statement is the perfect setup to reveal the reason behind my advice, "you don't know whether you've done anything wrong".
Case in point, did you know you can go to jail for 6 months for possessing a milk crate. Yes, a milk crate. If the crate has the name of a dairy upon it, it is a crime for you to possess it. And don't think of scraping the name off the crate, that's a crime too. With that in mind, we turn to Mr. McGowan.
Mr. McGowan was huddled under a blanket under the Santa Monica pier next to two milk crates. The police arrested him and the district attorney charged him with three crimes: illegal camping, loitering, and possession of a milk crate. At a Penal Code section 991 probable cause hearing, the magistrate determined there was no probable cause as to the camping and loitering charges. The magistrate dismissed those two counts from the complaint and set the case for trial on the milk crate charge.
The government objected to the magistrate dismissing those counts for which there was no probable cause, taking the position that section 991 only authorizes the magistrate to dismiss the entire complaint if she finds no probable cause as to all counts. The government's believes section 991 only allows for two outcomes, [1] if the magistrate finds no probable cause as to all counts, the entire complaint is dismissed and the defendant is let go, or [2] if the magistrate finds probable cause as to any count, a defendant stands trial for all counts in the complaint.
The Appellate division of the Los Angeles Superior Court agreed with the government, ordering reinstatement of the previously dismissed camping and loitering charges. The Second District Court of Appeal ordered that jurisdiction be transferred to herself and in a 2 to 1 decision, reverses.
The majority analogizes section 991 to sections 995 and 1385, two statutes with similar language which have been interpreted by the California Supreme Court to allow for dismissal of less than an entire pleading. To the majority, section 991 was enacted as a judicial safeguard against a prosecutor overcharging a defendant to gain a tactical advantage.
The dissent takes the position that section 991 was enacted solely as a Fourth Amendment protection to insure persons arrested without any probable cause aren't subject to prolonged and unnecessary incarceration awaiting trial, a protection required by the then recent United States Supreme Court decision in Gerstein v. Pugh.
Case in point, did you know you can go to jail for 6 months for possessing a milk crate. Yes, a milk crate. If the crate has the name of a dairy upon it, it is a crime for you to possess it. And don't think of scraping the name off the crate, that's a crime too. With that in mind, we turn to Mr. McGowan.
Mr. McGowan was huddled under a blanket under the Santa Monica pier next to two milk crates. The police arrested him and the district attorney charged him with three crimes: illegal camping, loitering, and possession of a milk crate. At a Penal Code section 991 probable cause hearing, the magistrate determined there was no probable cause as to the camping and loitering charges. The magistrate dismissed those two counts from the complaint and set the case for trial on the milk crate charge.
The government objected to the magistrate dismissing those counts for which there was no probable cause, taking the position that section 991 only authorizes the magistrate to dismiss the entire complaint if she finds no probable cause as to all counts. The government's believes section 991 only allows for two outcomes, [1] if the magistrate finds no probable cause as to all counts, the entire complaint is dismissed and the defendant is let go, or [2] if the magistrate finds probable cause as to any count, a defendant stands trial for all counts in the complaint.
The Appellate division of the Los Angeles Superior Court agreed with the government, ordering reinstatement of the previously dismissed camping and loitering charges. The Second District Court of Appeal ordered that jurisdiction be transferred to herself and in a 2 to 1 decision, reverses.
The majority analogizes section 991 to sections 995 and 1385, two statutes with similar language which have been interpreted by the California Supreme Court to allow for dismissal of less than an entire pleading. To the majority, section 991 was enacted as a judicial safeguard against a prosecutor overcharging a defendant to gain a tactical advantage.
The dissent takes the position that section 991 was enacted solely as a Fourth Amendment protection to insure persons arrested without any probable cause aren't subject to prolonged and unnecessary incarceration awaiting trial, a protection required by the then recent United States Supreme Court decision in Gerstein v. Pugh.
Wednesday, November 18, 2015
Harris v. Superior Court: Another Prop47 Issue Now has a Split of Opinions re "Benefit of the Bargain"
Certain government attorneys do not like their client's (The People of the State of California) change of heart regarding criminal penalties. And neither do two justices on this Second District panel.
Mr. Harris bonked a pedestrian on the head and stole the guy's cellphone. Harris was charged with robbery, PC 211, and was alleged to have suffered a prior "strike" and served prior prison terms. His maximum exposure was 15 years. As in almost all criminal cases, the prosecution and defense negotiated a plea bargain: Harris would plead to grand theft from a person, PC 487(c), admit the "strike", and get six years in prison. The balance of the charges and allegations would be dismissed. Both sides received a benefit. Harris avoided picking up another strike and received a sentence less than half of his maximum should he take his case to trial and lose. The prosecution avoided having to prepare and conduct a jury trial (no small task) that there was no guarantee they would win (nothing is ever certain in our legal system).
While serving his sentence, the People of the State of California passed Proposition 47, which reduced Harris' crime of grand theft to petty theft, an offense punishable by 180 days in the county jail. Harris petitioned to have his conviction reduced to a misdemeanor and to be resentenced to 180 days.
According to the language used in PC 1170.18, Harris' petition shall be granted, unless the court finds he poses an unreasonable threat to public safety. In the past, prosecutors tried to argue that despite the direct language in 1170.18, there exists an implicit exception for plea bargains. This was known as the "benefit of the bargain" argument. This argument was rejected, In re T.W.
Here, the government wisely tweaks their "benefit of the bargain" argument. They concede Harris is eligible under 1170.18 to have his case reduced to a 180-day misdemeanor, but assert that should he ask for this relief to which he is entitled, the government is entitled to have the court withdraw Harris' plea to enable the government to reinstate the original PC 211 charge. The Los Angeles trial court agrees with the government, grants Harris' petition, and promptly reinstates the original charges against Harris.
Harris petitions for a writ of mandate. The Second District summarily denies the petition. Harris petitions the California Supreme Court for review whereupon they direct the Second District to issue an order to show cause.
A divided panel denies writ relief holding that should Harris persist with his efforts at relief under PC 1170.18, the trial court can withdraw Harris' previous plea and, upon request of the government, reinstate all dismissed charges and allegations because in passing Proposition 47, the voters have denied the prosecution (the voters' lawyers) the benefit of their bargain. Furthermore, should Harris choose this route, he is not entitled to have his maximum sentence capped at six years.
What I find most ironic about the government's position is that their beef is actually with their own client, the People of the State of California. Their client voted to reduce the penalties for certain convictions. Usually a lawyer is charged with pursuing the goals of her client. But apparently there are exceptions.
The majority here justifies their holding by making a distinction between "statutory consequences of conviction" and negotiated terms of a plea bargain. They do this to get around a 2013 opinion of the California Supreme Court, Doe v. Harris, which states that inherent in California plea agreements is an agreement to future changes in the law. Doe involved a plea to a sex charge that, at the time of the plea, would not have resulted in public dissemination of Doe's status as a sex-offender. After the plea, the legislature changed the law, making Doe's status public. When Doe sought to withdraw his plea, the California Supreme Court held that when he made the plea deal, Doe was implicitly agreeing to such a future change in the law.
So what is really the difference with Mr. Harris? For one, the statutory change at issue inures to the benefit of the defendant, not against him as in Doe. So what kind of meretricious trope can the panel dredge up? They call the change in Doe's case a non-negotiable "statutory consequence" and make up a rule that the holding in Doe only applies to such "statutory consequences" and not to negotiable plea terms, such as Harris' six year sentence. This is unlettered taurine egesta. What the panel really means is that when the law changes to the detriment of a defendant, the defendant loses, in the rare event the law changes to benefit the defendant, well, he should lose then too.
When I read the opinion, ignoring the outcome, I was surprised by the low quality of the legal writing. Specifically, the opinion appears to partly justify its holding on the basis that to hold otherwise would grant Harris a "windfall" (creating a new judicial cannon of non terram fructus). So what? If lawmakers change the law and the honest application of that change in law results in a windfall to a party, where is the judicial authority to ignore the law? Also, towards the end of the opinion, the author makes statements about the strength of the evidence against Mr, Harris, the righteousness of the 211 charge, and the fact defense counsel didn't present a defense (it was a plea bargain after all). What does this have to do with the legal effects of subsequent legislation on criminal plea bargains?
Then I saw the author was a Superior Court Judge sitting by designation. Maybe that is why page 13 appears as it does (doesn't anyone proofread these?)
Justice Mosk dissents and I'll leave it up to the reader to decide who has the better argument. The dissent doesn't recognize the majority's ham-handed discriminatory vehicle of "statutory consequence" (as California's criminal code is based entirely on statute, what term of a plea agreement could not be termed a "statutory consequence"?) and instead finds the Supreme Court's holding in Doe applies to defendants as well as the government. He also asks a question unanswered by the majority: From where does the trial court get its grant of jurisdiction to withdraw the plea entered years ago?
Mr. Harris bonked a pedestrian on the head and stole the guy's cellphone. Harris was charged with robbery, PC 211, and was alleged to have suffered a prior "strike" and served prior prison terms. His maximum exposure was 15 years. As in almost all criminal cases, the prosecution and defense negotiated a plea bargain: Harris would plead to grand theft from a person, PC 487(c), admit the "strike", and get six years in prison. The balance of the charges and allegations would be dismissed. Both sides received a benefit. Harris avoided picking up another strike and received a sentence less than half of his maximum should he take his case to trial and lose. The prosecution avoided having to prepare and conduct a jury trial (no small task) that there was no guarantee they would win (nothing is ever certain in our legal system).
While serving his sentence, the People of the State of California passed Proposition 47, which reduced Harris' crime of grand theft to petty theft, an offense punishable by 180 days in the county jail. Harris petitioned to have his conviction reduced to a misdemeanor and to be resentenced to 180 days.
According to the language used in PC 1170.18, Harris' petition shall be granted, unless the court finds he poses an unreasonable threat to public safety. In the past, prosecutors tried to argue that despite the direct language in 1170.18, there exists an implicit exception for plea bargains. This was known as the "benefit of the bargain" argument. This argument was rejected, In re T.W.
Here, the government wisely tweaks their "benefit of the bargain" argument. They concede Harris is eligible under 1170.18 to have his case reduced to a 180-day misdemeanor, but assert that should he ask for this relief to which he is entitled, the government is entitled to have the court withdraw Harris' plea to enable the government to reinstate the original PC 211 charge. The Los Angeles trial court agrees with the government, grants Harris' petition, and promptly reinstates the original charges against Harris.
Harris petitions for a writ of mandate. The Second District summarily denies the petition. Harris petitions the California Supreme Court for review whereupon they direct the Second District to issue an order to show cause.
A divided panel denies writ relief holding that should Harris persist with his efforts at relief under PC 1170.18, the trial court can withdraw Harris' previous plea and, upon request of the government, reinstate all dismissed charges and allegations because in passing Proposition 47, the voters have denied the prosecution (the voters' lawyers) the benefit of their bargain. Furthermore, should Harris choose this route, he is not entitled to have his maximum sentence capped at six years.
What I find most ironic about the government's position is that their beef is actually with their own client, the People of the State of California. Their client voted to reduce the penalties for certain convictions. Usually a lawyer is charged with pursuing the goals of her client. But apparently there are exceptions.
The majority here justifies their holding by making a distinction between "statutory consequences of conviction" and negotiated terms of a plea bargain. They do this to get around a 2013 opinion of the California Supreme Court, Doe v. Harris, which states that inherent in California plea agreements is an agreement to future changes in the law. Doe involved a plea to a sex charge that, at the time of the plea, would not have resulted in public dissemination of Doe's status as a sex-offender. After the plea, the legislature changed the law, making Doe's status public. When Doe sought to withdraw his plea, the California Supreme Court held that when he made the plea deal, Doe was implicitly agreeing to such a future change in the law.
So what is really the difference with Mr. Harris? For one, the statutory change at issue inures to the benefit of the defendant, not against him as in Doe. So what kind of meretricious trope can the panel dredge up? They call the change in Doe's case a non-negotiable "statutory consequence" and make up a rule that the holding in Doe only applies to such "statutory consequences" and not to negotiable plea terms, such as Harris' six year sentence. This is unlettered taurine egesta. What the panel really means is that when the law changes to the detriment of a defendant, the defendant loses, in the rare event the law changes to benefit the defendant, well, he should lose then too.
When I read the opinion, ignoring the outcome, I was surprised by the low quality of the legal writing. Specifically, the opinion appears to partly justify its holding on the basis that to hold otherwise would grant Harris a "windfall" (creating a new judicial cannon of non terram fructus). So what? If lawmakers change the law and the honest application of that change in law results in a windfall to a party, where is the judicial authority to ignore the law? Also, towards the end of the opinion, the author makes statements about the strength of the evidence against Mr, Harris, the righteousness of the 211 charge, and the fact defense counsel didn't present a defense (it was a plea bargain after all). What does this have to do with the legal effects of subsequent legislation on criminal plea bargains?
Then I saw the author was a Superior Court Judge sitting by designation. Maybe that is why page 13 appears as it does (doesn't anyone proofread these?)
Justice Mosk dissents and I'll leave it up to the reader to decide who has the better argument. The dissent doesn't recognize the majority's ham-handed discriminatory vehicle of "statutory consequence" (as California's criminal code is based entirely on statute, what term of a plea agreement could not be termed a "statutory consequence"?) and instead finds the Supreme Court's holding in Doe applies to defendants as well as the government. He also asks a question unanswered by the majority: From where does the trial court get its grant of jurisdiction to withdraw the plea entered years ago?
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