People v. Gonzalez

Mr. Gonzalez aimed a laser pointer at a sheriff's helicopter for which he was arrested and charged by the Los Angeles District Attorney's office with a felony punishable by three years imprisonment.  Gonzalez was also fined two thousand dollars by the Federal Aviation Administration (FAA).  When Gonzalez showed up for his preliminary hearing, he entered a plea of "once in jeopardy" and showed the judge a receipt for his payment of the two thousand dollar FAA fine.  The judge found the FAA fine constituted a "criminal penalty", meaning Gonzalez had already been placed in jeopardy, and dismissed the case.  The prosecutor appealed.

Here the Second District reverses, ordering the complaint reinstated.  In the panel's opinion, Gonzalez did not satisfy his evidential burden of demonstrating the FAA fine was a "criminal punishment" for purposes of Article I, section 15, of the California Constitution.

Yesterday, I explained how California's appellate courts use the trope of "overburdened courts" when they are bereft of any legitimate legal basis to deny individuals certain protections against the state's armament.  Notice how, though hanging like ripe fruit (what could be better for California's overburdened superior courts than to relieve them of their burden to conduct a full-blown felony trial over an accusation of pointing a laser pointer at a helicopter and just defer to the FAA, who is much better suited to determine the severity of Gonzalez's actions), the concerns of overburdened courts and lessening said burden doesn't quite make it into this opinion.

That is because courts only consider their duties "burdens" when they benefit the individual.  On remand, I hope Gonzalez's attorneys realize Gonzalez has a right to burden the superior court with a jury trial on his plea of "once in jeopardy".

P v. DeLeon

When you read enough California appellate opinions, you quickly learn you can predict the result when you see certain language.  To wit, if you see the words, "further burden our overworked and under-resourced superior courts", the defendant is going to lose.  

First consider the language.  "Burden", really?  Is it really accurate  to refer to judicial obligations as "burdens"?  It is a telling use of language when judges don't even fear embarrassment for using the word "burden" to describe judicial duties mandated by the law.  Does a barista have the "burden" of pulling espresso shots?  Of course not.  Do nurses have the burdens of distributing medications and charting patients' vitals?    

As a lawyer you learn that when opinions cite the "burdens" on a criminal court they really mean the products of the procedural and substantive protections individuals have under our federal Constitution.  To employ reductio ad absurdum, if we could just do away with all those darn Constitutional protections, we would very effectively reduce the "burdens" on the superior courts (here's a "guilty" stamp and an ink pad, you'll be done by noon).  Likewise for language of "judicial efficiency".  The individual is going to lose.  North Korean courts are very efficient due to the lack of any protections for the accused; likewise for their death penalty scheme, very efficient indeed.

Here, the First District has the occasion to decide whether the procedural protection of a preliminary hearing mandated under the old parole revocation system run by the Board of Parole hearings is required under the new system of revocation within the superior courts.  They answer "no", for some justifiable reasons which do not require the tosh discussed above.  The decision isn't unjustifiable or even necessarily wrong.  But to paraphrase the late Mr. Hitchens, "It's not so important what you think, but how you think."  And if the above language is reflective of how this panel thinks, maybe we should consider adding to their "burdens" a refresher course on Constitutional law.  

People v. Bridgeford: Maryland v. Shatzer and the 14-day Rule

Two gang members were shot and killed.  The authorities suspected Mr. Bridgeford, an alleged member of a rival gang, was involved in the killings and obtained a warrant to obtain a sample of his DNA.  He was handcuffed and taken to a police station where he was placed in a room and advised of his Miranda rights.  Bridgeford said he wanted a lawyer and the interview was terminated.  Not believing they had evidence sufficient to establish probable cause that Bridgeford was involved in the murders, the police released Bridgeford.  Just a few hours later, police obtained additional evidence and arrested Bridgeford.  Police took him to an interview room, again advised Bridgeford of his Miranda rights, reminded him of his earlier invocation of his right to an attorney, and asked him if he now wished to speak to them.  Bridgeford said his earlier invocation was a mistake and proceeded to confess to the murders.  

Prior to trial Bridgeford's lawyer moved the trial court to throw out Bridgeford's confession.  The trial court denied the motion and Bridgeford's taped confession was played for the jury.  He was convicted of the murders and various enhancements.  

On appeal, a panel from the Fifth District reverses Bridgeford's convictions and remands the case for a new trial.  The issue when invocation of the right to counsel bars subsequent attempts at interrogation following release and rearrest is controlled by Maryland v. Shatzer, where a unanimous United States Supreme Court held the police must wait 14 days after a suspect's invocation of the right to counsel before they can "try again" after the suspect's release.  It appears from the opinion that neither party in the trial court cited to the Shatzer rule during the motion to suppress Bridgeford's confession and the trial court did not apply the rule.  That was an error requiring reversal and a new trial.  

People v. Waters: There is No Jurisdiction to Order Restitution After Probation is Successfully Completed

Ms. Waters embezzled over 20 grand from her employer.  She pled guilty and was placed on three years felony probation, a term of which was to pay a 200 dollar state restitution fine.  The court never ordered her to pay restitution to her employer.  Waters successfully completed probation and, two years after completion, returned to petition the court to reduce her conviction from a felony to a misdemeanor.  The court then realized restitution to the victim was never ordered and ordered Waters to pay back her employer the 20 grand and change she embezzled.  Waters appealed and argued the court lost jurisdiction to make the restitution order upon her successful completion of probation.  The government argued that Penal Code section 1202.46 states courts may correct "at any time" a sentence invalid for omission of a restitution order.  Waters counters that "at any time" must be read to mean at any time during probation.  

A panel from the First District agrees with Waters.  She doesn't have to pay.  

People v. White

Mr. White was a prisoner at California's Department of Juvenile Facilities.  He got into a fight with another prisoner and was pepper-sprayed by guards.  While he was in the shower washing off the capcaicin, he removed two shower heads and threw them at a wire-reinforced window behind which were two guards.  The first throw broke the window and sent glass into the eye of one guard and the second throw cut the lip of another guard.  White was charged with, and convicted of, assault by means likely to cause great bodily injury.

The argument on appeal was that the evidence was insufficient to convict White because a reasonable person would not think that throwing a shower head at a reinforced window would directly, naturally, and probably result in somebody on the other side getting hit by something.  The Second District panel disagrees and affirms White's conviction.  The opinion is pretty straightforward.  There is one irritating line in the opinion, though.  The beginning of the opinion contains the following sentence: "It is not [']open season['] for prisoners to throw missles at prison guards, even when they are protected by reinforced glass."  Really?  It isn't?  First, we should expect an appellate court to be able to spell "missiles".  Second, White never made such an argument, rather he made a legitimate legal argument which, convincing or not, is capable of being addressed head-on. I don't know whether Justice Yegan was just trying to be cute or if he truly is wont to employ ignoratio elenchi in his legal analysis, but it certainly does not increase confidence in the judiciary when published opinions contain such sophistry.

People v. Cordova

Here the California Supreme Court affirms the death penalty imposed upon Cordova for the rape and murder of an 8-year old girl in 1979.  The girl was found in her backyard and biological samples were taken from her body.  The police suspected a neighbor, Flores, but could not come up with sufficient evidence to charge him.  Flores later committed suicide.  When DNA tests became common and affordable, the government exhumed Flores body to see if his DNA matched those of semen found inside the victim.  They did not match.  The case remained cold until 2002 when a "cold hit" was found with the DNA of Cordova, now living in Colorado.  Cordova didn't deny it was his DNA but explained that the victim's mother was a roundheeled, barfly, with whom Cordova had slept.  His DNA must have been transferred from bedding or towels to the daughter.  A jury convicted him and sentenced him to die and the California Supreme Court affirms unanimously.

Coincidentally, I read this piece on a man whose paternity was denied because DNA in his semen did not match the DNA in his saliva.  I relate the two not because I think Cordova had a chimeral defense, but to make a broader point. People tend to misunderstand science and casuists often capitalize on this.  It was possible to find an expert witness, not so long ago, who would tell a jury it was impossible for a person to have more than one DNA profile.  No scientist would actually say such nonsense in front of her peers, as that is not how how the scientific process works.  The correct statement (at the time) would have been that no person has ever been observed to have more than one DNA profile.  Science is a continuing process where nothing it truly sacred.  Scientific theories and laws are continually found to be incomplete, not explaining new observations.  Einstein is venerated as a great Physical theoretician, but when observations conflict with his theories, science advances.  No informed person views these new findings as an "insult" to Einstein.  Rather they reflect the beauty of a system of thought that allows human beings to continually improve their understanding of the world.  Unfortunately science and the law tend to bring out the worst in members of each profession.  Fingerprints were previously thought unassailable, until it was observed otherwise.  True scientists are excited when new observations conflict with accepted theories, because then the fun starts.  Casuists get defensive and retreat to the comforts of denial.

People v. Mendoza - Realigning PC 1203.2a after Realignment (or) Is "Prison" a Noun or an Adjective?

After the Supreme Court of the United States held that California's Department of Corrections and Rehabilitation (CDCR) was operating its prisons in a manner that violated the Eight Amendment's prohibition against "cruel and unusual punishment", the legislative fix was  Assembly Bill 109, statutory changes collectively termed "Realignment".  One of the major changes was that certain felony sentences would now be served in local jails, instead of CDCR.  The statutory sentences were not reduced, rather the facility where they would be served was changed.  Prior to Realignment, the rubric for sentences was, in most cases, simple:  misdemeanor = county jail, while felony = CDCR ("prison").

After realignment it is not so simple.  Misdemeanor still = county jail, however felonies can be either county jail or CDCR (depending on the particulars of the charges and defendant).  Issues have arisen because the preexisting penal code still uses the old terminology, meaning it delineates between misdemeanants and felons based upon where they serve their sentence.  So where do these "new" sentences (felony sentences to county jails) fit in to statutes predating Realignment?  This case answers that question within the context of penal code section 1203.2a.

Mendoza pled to four drug related charges in Riverside County and was placed on probation.  Subsequently she got into trouble in San Bernardino County and pled guilty to a drug felony.  The San Bernardino judge sentenced Mendoza to serve 16 months (a felony sentence) in the San Bernardino County jail.  While in the San Bernardino jail, Mendoza sent a written demand, pursuant to PC 1203.2a, to the Riverside court demanding her probation be terminated and that she be sentenced in absentia and without a lawyer.  For some reason, the Riverside court's response when Mendoza's case was called was, "[w]e'll just drop it.".  More than three months later, Mendoza appeared in Riverside court and admitted violating her probation whereupon the court reinstated her on probation.  She appealed.

Under penal code section 1203.2a, if a probationer is subsequently "confined in a prison in this state" on another charge, and she makes an effective written demand to the probationary court to terminate her probation and impose sentence, the probationary court has 30 or 60 days (depending on whether sentence had been previously imposed) to act, otherwise it loses jurisdiction.  The primary issue in this case is whether Mendoza, serving a felony sentence in a county jail, satisfied the statutory requirement of being "confined in a prison in this state".  The secondary issue is whether Mendoza's written demand was effective even though it lacked an "attestation" by the "warden or the warden's representative" as required in 1203.2a.  This Fourth District panel answers both questions with "yes".

The government argues that "prison" means CDCR and that unless a person is confined within a CDCR facility they are not "confined in a prison" for purposes of 1203.2a.  The court rejects this argument and holds that equal protection considerations require 1203.2a to apply to felons serving sentences in county jails (which the court slyly calls "county prisons", a new (to me) term they appear to just make-up).  As for the secondary issue of whether Mendoza's written demand was legally effective despite the lack of the attestation by the warden, the panel states quite clearly that, "[t]he lack of attestation is not a condition precedent to the validity of a request under Penal Code section 1203.2a".  Which is a good thing because it would be difficult to get an attestation from the "warden" of a county jail as county jails do not have "wardens",  rather they are run by a sheriff and the sheriff's staff.

As it ends, the Riverside court lost its jurisdiction over Mendoza when it failed to act within the statutory limits after receiving her demand.  The court had no power to find her in violation of probation and reinstate her probation.  

People v. Page - When is a Lesser Included Offense Actually Greater?

Issues created by changes to the Penal Code via last November's Proposition 47 are now being decided by the appellate courts.  Here the issue becomes whether a lesser included offense of a misdemeanor can properly be punished as a felony.  According to this panel from the Fourth District, the answer is "yes".  

Prior to last November's election, Page pled guilty to violating California Vehicle Code section 10851,  which proscribes taking or driving someone else's car without their permission with the intent to deprive the owner of possession or ownership for any period of time.  One of the effects of Prop47 was to add a section to the Penal Code which stated that all thefts under 950 dollars are now petty thefts, which are misdemeanors.  Grand theft auto is defined in Penal Code section 487(d), which requires the offender to take possession of someone else's car without their permission with the intent to permanently deprive the owner of his ownership.  As you may notice, Vehicle Code section 10851 is a lesser included of 487(d), meaning you cannot commit a 487(d) without necessarily committing a 10851 (you can't take someone's car with the intent to permanently deprive the owner of his car without necessarily also intending to temporarily deprive the owner of his car).  

Post-election, Page asks the court to reduce his 10851 to a misdemeanor under the theory that because Prop47 made the greater crime, 487(d) a misdemeanor (as long as the car was a hoopty worth less than 950 bucks), necessarily the lesser crime, 10851, must also become a misdemeanor.  Logic would dictate such, yes?  No, says this panel.  Because the amendments to the Penal Code did not mention 10851, there is no indication the lawmakers meant for it to apply in this case.  But what possible rational basis could lawmakers (here the voters) have to punishing a lesser included offense of a misdemeanor as a felony?  This panel doesn't do a very convincing job of answering that question.  Specifically they quote this language from P v. Romo,  “a car thief may not complain because he may have been subjected to imprisonment for more than 10 years for grand theft of an automobile [citations] when, under the same facts, he might have been subjected to no more than 5 years under the provisions of section 10851 of the Vehicle Code.” (People v. Romo (1975) 14 Cal.3d 189, 197.)   Curiously this language cuts the other way; it supports Page's argument.  Grand theft auto is the greater crime, therefore it makes sense a defendant cannot complain of a greater punishment.  Page is saying that he is being punished more severely for committing a lesser crime.  

The panel here takes the textualist tact and says they are not going to rewrite statutes on the basis of logic or reason.  Which is fine.  What leaves a bitter taste is that such judicial restraint seems to almost always find its home in holdings limiting relief for criminal defendants (I speak of the California appellate courts in general, not this particular panel).  This kind of judicial restraint and respect for legislative text seems to go on holiday when the State asks courts to expand their power over individuals.  

In re RICARDO P.

Ricardo admitted to taking part in two residential burglaries.  He was declared a ward of the court and placed on probation.  One of his probation terms was that he was required to submit to warrantless searches of his "electronics including passwords".   It is a strange condition since a "password" is not an "electronic", but the First District panel generously interprets the term to mean that Ricardo has to provide passwords which may guard access to the data stored on his electronic devices as well as provide passwords that may guard access to data stored, not on Ricardo's electronic device, but stored somewhere else as part of Ricardo's social network accounts.  The juvenile court judge imposed the condition because, in his experience, people often use electronic devices and social network accounts to brag about, and post photographs of, their drug use. 

While the Court of Appeal finds the electronic search term is related to future criminality, the panel strikes it down as overbroad because it infringes on Ricardo's Constitutional rights to privacy and expression and is not narrowly tailored. 

People v. Linn - Attitudes, Semantics, and the Fourth Amendment

At the precipice of the Fourth Amendment often lies the question of whether the police have detained someone or whether the encounter is consensual.  One part of the test is whether under the circumstances a reasonable, innocent, person would feel free to, in legalese, "terminate the encounter and leave".  In ordinary language, it means would you feel comfortable saying "Sorry officer, but I've got things to do" and walking or driving away.

Here, Linn was driving her truck when her passenger flicked cigarette ash out the passenger window.  A motorcycle policeman saw this and followed Linn's truck.  After Linn parked her truck, the policeman parked his motorcycle next to the truck and spoke to Linn.  He told Linn to put out her cigarette and put down the soda she was drinking.  Then he asked Linn for her driver's license, which she produced for him.  The policeman held on to it while he radioed in a records check on Linn.  Around two minutes into the encounter, the policeman smelled booze on Linn, leading to a DUI investigation and eventual arrest.

Linn moved to suppress the results of the DUI investigation as the fruits of an illegal search.  She won in the trial court, but the Superior Court's Appellate division reversed.  Now in the Court of Appeal, Linn wins.  The First District panel agrees with Linn that she was detained by the officer and since the officer had no reason to detain Linn (it was the passenger who flicked the ashes) the detention was illegal.  A large part of the opinion is devoted to the legal significance of a police officer asking for, receiving, and holding onto, a person's driver's license.  There are California cases that cut both ways.  Some cases state that if a policeman asks you for your I.D. and you provide it, that doesn't mean a reasonable, innocent, person wouldn't feel completely at ease telling the officer to give it back because you want to leave.  Other cases (more reasonably, in my opinion) hold that if a policeman is holding onto your I.D. you are not going to feel free to just take off.

Here the panel finds, given the entire encounter ("put that cigarette out", "put down that can of soda", "driver's license please") a reasonable, innocent, person in Linn's place would not have felt free to leave.

Now the actual answer to whether someone feels free to leave depends on the (legally irrelevant) characteristics of the "reasonable person".  If a policeman approaches you while you are parked talking on your cell phone and says, "Can I get you to put down your phone and step out of the car for me?"  Do you feel free to say, "no" and go about your way?  Grammatically it is a question isn't it (although a convoluted one, as how would I know what the cop can get me to do?)  Do you think a 19 year old male in a high-crime area would feel the same?

P v. Buycks -- Proposition 47 and Californias "Crime-Bail-Crime" enhancement

November 4, 2014, California voters passed the ballot initiative Proposition 47.  Prop 47 reduced certain crimes from felonies to misdemeanors and also allowed defendants serving felony sentences for those same crimes to petition the courts to reduce their sentences from felonies to misdemeanors.  Key is the language that once reduced the crime is to be a "misdemeanor for all purposes" (except certain purposes not at issue here).

Buycks was arrested for possession of narcotics (a felony at the time).  While he was out on bail on the narcotics charge, he committed a felony (at the time) petty theft and a felony evasion.  California, among its various sentencing enhancements, adds two years to a felony sentence when you are convicted of a felony committed while you were already out on bail for a felony for which you are eventually convicted (colloquially called the crime-bail-crime enhancement).  Buycks was convicted of the narcotics felony and the subsequent felony petty theft and evasion.  So when he was sentenced, the judge added two years to his sentence for the crime-bail-crime enhancement.

ThenProp 47 passes and Buycks returns to court and petitions to have his felony narcotic possession and felony petty theft reduced to misdemeanors.  The court grants the petitions and proceeds to resentence Buycks on all three crimes (now two misdemeanors and one felony).  The court again imposes the two year enhancement.  Buycks appeals, saying that since his narcotics possession is now a misdemeanor "for all purposes", the enhancement is inapplicable.  The appellate court agrees and strikes the enhancement.  A felony reduced to a misdemeanor pursuant to Prop 47 cannot provide the basis for a two year crime-bail-crime enhancement.

The court's reasoning is quite solid and I agree with the holding. One thing about the opinion is strange though.  There are numerous citations to a pamphlet prepared by Couzens (a retired Superior Court judge) and Justice Bigelow (who is on the panel) analyzing Prop 47.  In my mind, while it is fine to adopt the legal reasoning behind the conclusions of the Couzens and Bigelow pamphlet (as we lawyers often do with unpublished opinions), citing to fellow judges' non-judicial publications as authority may give the impression of judicial bootstrapping (because one of us has said it, we can rely upon it).  To paraphrase Judge Richard Posner, "it may be better for the Mohel to display pocketwatches in his window".

Jameson v. Desta

Although this blog focuses on criminal appeals, this opinion deserves inclusion.  It should be required reading prior to jumping on the "tort reform" bandwagon.  

Jameson is a prisoner at Donovan state prison.  Desta is a health care provider at Donovan.  Jameson sues Desta claiming Desta continued to give Jameson the drug interferon for hepatitis long after Desta knew Jameson's hepatitis had been cured causing damage to Jameson's eyesight.  As the California prison system is still being overseen by the Federal courts due in part to Constitutionally deficient health care, there may be something to Jameson's suit.  Interestingly, three times prior the trial court entered judgment in favor of Desta and three times was reversed on appeal.  

Here Jameson got his trial.  As it was a civil case, the court did not provide a court reporter.  Jameson was informed of this and that if he wanted the trial recorded, he would have to hire his own certified shorthand reporter.  Jameson is indigent, but that doesn't matter.  No money: no reporter.  Following opening statements, the court directs a nonsuit in favor of Desta.  Jameson appeals.

Here is the holding: because Jameson had no money to hire a court reporter, there is no record of the trial upon which the appellate court can find any error.  Jameson loses.  He loses (here) because he has no money.  Admirably the opinion contains the following statement, "[C]ivil justice is not free."  Stated in the converse, civil justice has a price, and if you have no money, you are not entitled to justice.  True, and acherontic.  

People v. Woods

Here the Fourth District reverses the defendant's convictions on eight counts of forcible oral copulation with a minor over 14 and one count of forcible oral copulation in concert with a minor over 14 for the failure of the trial court to give instructions on the lesser included offenses of non-forcible oral copulation.  The defendant's analogous argument as to his forcible rape convictions are rejected.  

The issue is when one crime is a necessary lesser included of another crime.  The analysis involves two tests, the "legal elements test" (whether the statutory elements of the greater include all statutory elements of the lesser) and the "accusatory pleading test" (whether the facts alleged in the accusatory pleading include all the elements of the lesser offense).  However enhancements are not to be considered under the "accusatory pleading test".  Because the trial judge erroneously characterized the age element in the forcible oral copulation counts as an enhancement instead of an element, those counts are reversed.  As to the forcible rape counts, the accusatory allegation that Woods was subject to the "one strike" rule due to the victim's age is found to be more akin to an enhancement and he loses on those counts.   

The opinion contains a statement of tortile facts.  These facts support a notion that it is probably not a good idea to base a relationship on a mutual love of playing World of Warcraft to the point your family abandons you.  It is also probably not a good idea to move in with someone who gropes your 12 year old daughter while you are in the room.  Or maybe I'm just old fashioned.  

P v. Bell, et al.

There is something to be said for a crisp opinion on a pure question of law.  One of the things that can be said for such opinions is that they leave little room through which judicial prejudice may emerge.  The danger of less principled opinions is that they tend to allow the reader to "see the sausage being made".  This opinion provides a clear view into the abattoir.
The government had built a case that the defendants were planning a robbery and while the defendants were on their way to the target, pulled them over and extracted them from the car.  There were armored personnel carriers and other SWAT equipment involved in the traffic stop.  The trial judge ruled the martial details of the stop (that there were SWAT teams, advanced weaponry, and military-style vehicles) inadmissible and admonished the prosecutor not to elicit such details.

The prosecutor had to substitute a witness last-minute and failed to tell the witness not to mention the armory present during the stop.  The prosecutor asked the witness if he made contact with the defendant's vehicle during the stop and the witness answered, "No.  I was positioned in the turret of the armored personnel carrier."  Oops. The defense moved for, and was granted, a mistrial.  At retrial, the defendants pled once in jeopardy.  The trial judge denied the defendants a jury trial on the defense of once in jeopardy and denied their motion to dismiss the indictment.  The defendants were then convicted and appealed the trial court's denial of a jury trial on the issue of once in jeopardy. 

The legal issue here was narrow and quite clear.  California statute explicitly provides the defendants a right to a jury trial on whether they were once in jeopardy, regardless of the theory upon which they rely (here the theory that the prosecutor goaded them into requesting a mistrial by failing to admonish his witness or asking a question likely to elicit inadmissible testimony).  The panel gets the answer right and conditionally reverses the convictions.  It could have (and IMEO should have) been a crisp, unassailable opinion. 
But the panel clearly does not agree with the outcome.  Which is fine.  What makes Justice Poochigan look less than judicial is his opinion's girning pleas to the legislature to consider changing the law.  I know nothing of Justice Poochigan's background but his explicitly stated preferences for judicial fact-finding and efficiency at the expense of a defendant's statutory right to take his case to a a jury are political and not judicial.  Most if not all judges have prejudices one way or another.  However, the saavy ones omit this offal from their opinions.