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.
Monday, November 30, 2015
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?
Monday, November 16, 2015
People v. Lee
The facts in this opinion serve as a reminder that you needn't be likable to be a crime victim.
Lee was driving a rented Range Rover through Los Angeles with his fiance and friends. The victim was panhandling at the end of an off-ramp where Lee was stopped. Victim approached Lee's vehicle and asked for money and Lee shooed him away. Victim persisted, Lee yelled at him to go away, victim yelled back at Lee and lifted up his shirt, displaying a tattoo on his stomach of "a male and a female in a sexual position". Lee felt the victim had disrespected Lee's fiance with this body-art display. Lee and the victim escalated their shouting match and the victim supplemented his bon mots with sexual pantomimes.
Though not what you really want to see during a drive with your fiance and friends, the best reaction is not to run down the panhandler and beat him silly with a tire iron. Which is what witnesses testified they saw.
In making their case against Lee, the police obtained a warrant to search for guns at a house in Malibu that Lee had earlier identified as his residence. The warrant affidavit stated that Lee was a convicted felon and that a governmental firearms registry showed Lee as the registered owner of two pistols. No guns were found while executing the search warrant, but a person present at the residence gave the police the name and phone number of one of the passengers in the Range Rover at the time Lee allegedly beat the victim. The police contacted this passenger whose statement was very bad for Lee.
Prior to trial, Lee requested, and was granted, a Franks hearing, as part of a motion to suppress the testimony of the passenger. The essence of Lee's argument was that Lee registered the two pistols in 1995 and didn't pick up his felony until 2001 and that the application for the warrant omitted these facts. Lee argued that had the affiant included the dates in his affidavit, the magistrate would not have signed it, the police would not have searched the Malibu home, would not have met the occupant who gave them the passenger's information, and hence, would never have secured the testimony of the passenger. After the hearing(s), the trial court agreed with Lee about the omissions from the affidavit and quashed the warrant, but denied Lee's motion to suppress the testimony of the passenger.
The passenger testified and Lee was convicted. He appealed and argued that the trial court erred in denying his motion to suppress.
The Appellate panel agrees the trial court erred, but unfortunately for Lee finds that it erred in quashing the warrant as well as in granting Lee's Franks hearing. Lee's remaining contentions are rejected.
As for the victim, after the beating he was arrested for slinging cocaine and while in custody jumped another inmate. He managed to retain a civil lawyer to sue Lee for his injuries. His lawyer was in the courtroom during Lee's trial and the victim gave him a big "thumbs up" gesture in view of the jury while leaving the witness stand.
Not every criminal case conforms to a conventional narrative.
Lee was driving a rented Range Rover through Los Angeles with his fiance and friends. The victim was panhandling at the end of an off-ramp where Lee was stopped. Victim approached Lee's vehicle and asked for money and Lee shooed him away. Victim persisted, Lee yelled at him to go away, victim yelled back at Lee and lifted up his shirt, displaying a tattoo on his stomach of "a male and a female in a sexual position". Lee felt the victim had disrespected Lee's fiance with this body-art display. Lee and the victim escalated their shouting match and the victim supplemented his bon mots with sexual pantomimes.
Though not what you really want to see during a drive with your fiance and friends, the best reaction is not to run down the panhandler and beat him silly with a tire iron. Which is what witnesses testified they saw.
In making their case against Lee, the police obtained a warrant to search for guns at a house in Malibu that Lee had earlier identified as his residence. The warrant affidavit stated that Lee was a convicted felon and that a governmental firearms registry showed Lee as the registered owner of two pistols. No guns were found while executing the search warrant, but a person present at the residence gave the police the name and phone number of one of the passengers in the Range Rover at the time Lee allegedly beat the victim. The police contacted this passenger whose statement was very bad for Lee.
Prior to trial, Lee requested, and was granted, a Franks hearing, as part of a motion to suppress the testimony of the passenger. The essence of Lee's argument was that Lee registered the two pistols in 1995 and didn't pick up his felony until 2001 and that the application for the warrant omitted these facts. Lee argued that had the affiant included the dates in his affidavit, the magistrate would not have signed it, the police would not have searched the Malibu home, would not have met the occupant who gave them the passenger's information, and hence, would never have secured the testimony of the passenger. After the hearing(s), the trial court agreed with Lee about the omissions from the affidavit and quashed the warrant, but denied Lee's motion to suppress the testimony of the passenger.
The passenger testified and Lee was convicted. He appealed and argued that the trial court erred in denying his motion to suppress.
The Appellate panel agrees the trial court erred, but unfortunately for Lee finds that it erred in quashing the warrant as well as in granting Lee's Franks hearing. Lee's remaining contentions are rejected.
As for the victim, after the beating he was arrested for slinging cocaine and while in custody jumped another inmate. He managed to retain a civil lawyer to sue Lee for his injuries. His lawyer was in the courtroom during Lee's trial and the victim gave him a big "thumbs up" gesture in view of the jury while leaving the witness stand.
Not every criminal case conforms to a conventional narrative.
Friday, November 13, 2015
*REVIEW GRANTED People v. Romanowski: Proposition 47 Applies to PC 484e(d), Disagreeing with P v. Cuen
I recently commented on People v. Cuen, an opinion holding that grand theft by way of unlawful possession of access card information, PC 484e(d), did not fall within the list of offenses eligible for reduction to a misdemeanor under PC 490.2. Or to be more concise, Cuen said Proposition 47 did not affect 484e(d). Ignoring the result, Cuen was a poorly reasoned decision for the reasons stated in my post, most notably quickly jettisoning a judicial examination of the statutory text so as to proceed to Delphic policy arguments.
This First District panel agrees.
Mr. Romanowski pled guilty to 484e(d), felony grand theft of access card information. Following the passage of Proposition 47 in the November 2014 election, he petitioned the court to reduce his 484e(d) conviction to a misdemeanor via PC 1170.18. Romanowski's argued that 490.2 explicitly includes any statute defining grand theft and that 484e(d) defines grand theft. Pretty simple. The trial court denied the petition, accepting the prosecution's argument that PC 484e(d) was, "akin to identity theft under section 530.5, which was beyond the scope of Proposition 47." This was a first for me as I was previously unaware of the judicial cannon of statutory "kinship" and that it could legitimately override clear statutory text.
The appellate panel kindly ignores the trial court's Appalachian creation and substitutes a pretty straightforward statutory analysis. Since PC 490.2 applies to any "provision of law defining grand theft" and PC 484e(d) is clearly a provision of law defining grand theft, 484e(d) falls within 490.2. If the access card information supporting Romanowski's conviction was worth less than 950 dollars, he is eligible to have his conviction reduced to a misdemeanor. The court remands to the trial court to determine the value of the access card information.
Now there is a split of opinion among, and within (see People v. Grayson), the District Courts of Appeal.
This First District panel agrees.
Mr. Romanowski pled guilty to 484e(d), felony grand theft of access card information. Following the passage of Proposition 47 in the November 2014 election, he petitioned the court to reduce his 484e(d) conviction to a misdemeanor via PC 1170.18. Romanowski's argued that 490.2 explicitly includes any statute defining grand theft and that 484e(d) defines grand theft. Pretty simple. The trial court denied the petition, accepting the prosecution's argument that PC 484e(d) was, "akin to identity theft under section 530.5, which was beyond the scope of Proposition 47." This was a first for me as I was previously unaware of the judicial cannon of statutory "kinship" and that it could legitimately override clear statutory text.
The appellate panel kindly ignores the trial court's Appalachian creation and substitutes a pretty straightforward statutory analysis. Since PC 490.2 applies to any "provision of law defining grand theft" and PC 484e(d) is clearly a provision of law defining grand theft, 484e(d) falls within 490.2. If the access card information supporting Romanowski's conviction was worth less than 950 dollars, he is eligible to have his conviction reduced to a misdemeanor. The court remands to the trial court to determine the value of the access card information.
Now there is a split of opinion among, and within (see People v. Grayson), the District Courts of Appeal.
People v. Morris: Proposition 47 and the Ex Post Facto Clause
In January of 2013, Morris nicked a 719 dollar laptop from a Costo store. He was caught and convicted of felony-petty theft with a prior. Also true were that Morris had a prior "strike" conviction and two prior prison terms. The result was Morris received a four year prison sentence.
After the November 2014 passage of Proposition 47, Morris petitioned under PC 1170.18 for the court to reduce his conviction to a misdemeanor and resentence him. The court granted his petition, reduced his conviction from a felony to a misdemeanor petty theft, and resentenced him to serve 180 days in county jail, pay Costco back 719 dollars, and pay a 200 dollar state restitution fine. Morris already had credit for 477 days on his prior sentence, 297 days over the 180 day sentence. On appeal, Morris argued that the court should have applied his excess credits towards his 200 dollar restitution fine.
The Sixth District agrees with Morris.
Penal Code section 2900.5 addresses the issue of excess custody credits and fines. Prior to a July 2013 amendment that removed the term "restitution fines", section 2900.5 specifically included "restitution fines" within the category of fines against which excess custody credits are to be applied. Since fines are "punishment" and the maximum "punishment" is Constitutionally limited to that applicable under the law existing at the time the crime is committed, Morris is entitled to the benefit of section 2900.5 as it existed at the time he nicked the computer. So he gets his excess custody credits applied against his restitution fine. At 30 dollars a day, his 297 extra days wipes out his 200 dollar restitution fine.
Hopefully this will make it easier for him to pay Costco the 719 dollars for the computer.
After the November 2014 passage of Proposition 47, Morris petitioned under PC 1170.18 for the court to reduce his conviction to a misdemeanor and resentence him. The court granted his petition, reduced his conviction from a felony to a misdemeanor petty theft, and resentenced him to serve 180 days in county jail, pay Costco back 719 dollars, and pay a 200 dollar state restitution fine. Morris already had credit for 477 days on his prior sentence, 297 days over the 180 day sentence. On appeal, Morris argued that the court should have applied his excess credits towards his 200 dollar restitution fine.
The Sixth District agrees with Morris.
Penal Code section 2900.5 addresses the issue of excess custody credits and fines. Prior to a July 2013 amendment that removed the term "restitution fines", section 2900.5 specifically included "restitution fines" within the category of fines against which excess custody credits are to be applied. Since fines are "punishment" and the maximum "punishment" is Constitutionally limited to that applicable under the law existing at the time the crime is committed, Morris is entitled to the benefit of section 2900.5 as it existed at the time he nicked the computer. So he gets his excess custody credits applied against his restitution fine. At 30 dollars a day, his 297 extra days wipes out his 200 dollar restitution fine.
Hopefully this will make it easier for him to pay Costco the 719 dollars for the computer.
Thursday, November 12, 2015
People v. Gonzalez: Proposition 47 Eligibility -- Following Precedent or Judicial Schadenfreude?
One major flaw with this opinion is that the application of the holding, while justifying the trial court's denial of Gonzalez's 1170.18 petition, places the conviction itself in question. Another major flaw is that the decision appears to be incorrect.
Gonzalez walked into a bank and cashed two 125 dollar checks he had written to himself. He had earlier taken the checks from his Nana without permission. For this peccadillo he pled guilty to felony second degree burglary. After the November, 2014, election, Gonzalez petitioned pursuant to PC 1170.18 for his conviction to be reduced to misdemeanor shoplifting, PC 459.5. The trial court denied his petition, stating that Gonzalez's crime was not shoplifting because shoplifting requires an intent to commit larceny and Gonzalez's intent upon entering the bank was not to commit larceny, but rather theft by false pretenses.
A panel from the Fourth District affirms. But it does so in a faineant fashion omitting any discussion of the statute that textually addresses the central issue. The panel essentially says: [1] PC 459.5 requires an intent to commit larceny; [2] The California Supreme Court said in People v. Williams that larceny requires taking property without consent of the owner; and, [3] Since Gonzalez received the 250 dollars with the consent of the bank teller, it wasn't larceny, and hence, wasn't shoplifting.
The opinion is short and for a good reason; a thorough examination of Williams and PC 490a demonstrates the panel's opinion is constructed on labile podium.
Robbery was a common law crime codified by the California Legislature in 1872. Robbery requires a "felonious taking". In Williams, the California Supremes had occasion to decide what "felonious taking" meant within the context of robbery. Mr. Williams had purchased some gift cards with fraudulent credit cards and shoved store security officers who had attempted to question him. In reversing William's robbery conviction, the majority decided "felonious taking" for purposes of robbery meant "larceny" as that term was understood at common law, a trespassory taking. Because the store clerk had voluntarily given Williams the gift cards, there was no larcency.
The dissent in Williams pointed out the majority had overlooked PC 490a, passed in 1927. PC 490a says the following.
Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word “theft” were substituted therefor.
The majority rejected the application of 490a on two grounds. First, robbery doesn't mention "larceny, embezzlement, or stealing" directly rather it refers to "felonious taking", making the statute textually inapplicable. Second, the majority said that 490a was not intended to alter the elements of any preexisting crime.
In the instant case, 490a is applicable, not having either of the two impediments to its application cited in Williams. First, it clearly is textually applicable as PC 459.5 explicitly refers to "larceny". Second, PC 459.5 was created more than 80 years after 490a was enacted and legislatures are presumed to be aware of existing statutes when new ones they enact. Even if 490a is inapplicable to crimes already codified in 1927, that is of no effect here. To hold otherwise would be to render 490a meaningless (if it doesn't apply to pre-1927 crimes nor post-1927 crimes, to what would it apply?).
As to the crime of shoplifting, if you follow the plain language of the applicable statutes, "larceny" in the shoplifting statute "shall be read and interpreted" as the word "theft" which, in another statute, PC 484, specifically includes false pretenses. In order to affirm, the panel ignores all of this.
Then there is another question. If Gonzalez didn't have the intent to commit "larceny" when he entered the bank, what is the factual basis for his PC 459 conviction? Commercial burglary has as one of its elements the "intent to commit grand or petit larceny or any felony." If the panel holds there was no larceny, what factual basis supports the commercial burglary conviction?
Gonzalez walked into a bank and cashed two 125 dollar checks he had written to himself. He had earlier taken the checks from his Nana without permission. For this peccadillo he pled guilty to felony second degree burglary. After the November, 2014, election, Gonzalez petitioned pursuant to PC 1170.18 for his conviction to be reduced to misdemeanor shoplifting, PC 459.5. The trial court denied his petition, stating that Gonzalez's crime was not shoplifting because shoplifting requires an intent to commit larceny and Gonzalez's intent upon entering the bank was not to commit larceny, but rather theft by false pretenses.
A panel from the Fourth District affirms. But it does so in a faineant fashion omitting any discussion of the statute that textually addresses the central issue. The panel essentially says: [1] PC 459.5 requires an intent to commit larceny; [2] The California Supreme Court said in People v. Williams that larceny requires taking property without consent of the owner; and, [3] Since Gonzalez received the 250 dollars with the consent of the bank teller, it wasn't larceny, and hence, wasn't shoplifting.
The opinion is short and for a good reason; a thorough examination of Williams and PC 490a demonstrates the panel's opinion is constructed on labile podium.
Robbery was a common law crime codified by the California Legislature in 1872. Robbery requires a "felonious taking". In Williams, the California Supremes had occasion to decide what "felonious taking" meant within the context of robbery. Mr. Williams had purchased some gift cards with fraudulent credit cards and shoved store security officers who had attempted to question him. In reversing William's robbery conviction, the majority decided "felonious taking" for purposes of robbery meant "larceny" as that term was understood at common law, a trespassory taking. Because the store clerk had voluntarily given Williams the gift cards, there was no larcency.
The dissent in Williams pointed out the majority had overlooked PC 490a, passed in 1927. PC 490a says the following.
Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word “theft” were substituted therefor.
The majority rejected the application of 490a on two grounds. First, robbery doesn't mention "larceny, embezzlement, or stealing" directly rather it refers to "felonious taking", making the statute textually inapplicable. Second, the majority said that 490a was not intended to alter the elements of any preexisting crime.
In the instant case, 490a is applicable, not having either of the two impediments to its application cited in Williams. First, it clearly is textually applicable as PC 459.5 explicitly refers to "larceny". Second, PC 459.5 was created more than 80 years after 490a was enacted and legislatures are presumed to be aware of existing statutes when new ones they enact. Even if 490a is inapplicable to crimes already codified in 1927, that is of no effect here. To hold otherwise would be to render 490a meaningless (if it doesn't apply to pre-1927 crimes nor post-1927 crimes, to what would it apply?).
As to the crime of shoplifting, if you follow the plain language of the applicable statutes, "larceny" in the shoplifting statute "shall be read and interpreted" as the word "theft" which, in another statute, PC 484, specifically includes false pretenses. In order to affirm, the panel ignores all of this.
Then there is another question. If Gonzalez didn't have the intent to commit "larceny" when he entered the bank, what is the factual basis for his PC 459 conviction? Commercial burglary has as one of its elements the "intent to commit grand or petit larceny or any felony." If the panel holds there was no larceny, what factual basis supports the commercial burglary conviction?
Tuesday, November 10, 2015
In re Albert C.
Albert C. was arrested for threatening a a public officer. Filed against him was a 602 petition his appearance upon which the judge released him to his mother. Albert ran away from home shortly after. Approximately six months later he was arrested for, among other things, felony assault, for which another 602 petition was filed.
Upon return to court, Albert's lawyer doubted Albert's trial competence and the proceedings were suspended. A doctor opined that Albert was incompetent, the judge found same, and the court ordered Albert to remain in juvenile hall while the state attempted to render him competent.
After around 300 days of "competency training" the court held another hearing. A different doctor was appointed to assess Albert and found he remained incompetent. An employee of the business with whom the county contracted to provide competency training for Albert testified he had not passed their competency quiz yet, although his recent scores were improved over his past scores.
The judge felt that Albert was "exaggerating" his responses on the competency quiz and found Albert competent. Because the California Supreme Court has held a minor is presumed competent and has the evidentiary burden to prove incompetency by a preponderance of the evidence, all the trial judge has to do is reject the doctor's opinion and slump upon the presumption. After being found competent, Albert admitted a charge in each of the two petitions, was declared a delinquency ward and ordered into placement. He appealed.
A panel from the Second District affirms.
Two points, apart from the central legal issues, stand out from my reading of this opinion. First, California's Welfare and Institutions Code fails to provide statutory procedures to protect the interests of juveniles who are the subject of incompetency proceedings. It is excerebrose that an adult in the same situation would have been removed from jail and taken to a state hospital where he would have received treatment, supervision, and competency training from licensed physicians, nurses, and psychologists, while minors stay in jail and receive 30 minutes of competency training a week from a lowest-bidder outside contractor (I'll let the reader draw their own conclusions as to the quality of the "competency" program here). Because the Code is bereft of any humane procedure, a Superior Court Judge in Los Angeles laudably drafted a procedure, "the Protocol". However, the panel held that the "Protocol" did not have the force of law and thus, Albert was not entitled to its protections.
Second, kids who are dependency wards suffer unnecessarily when they are pending 602 petitions as social services' limacine efforts at finding suitable housing (anticipating a possible delinquency wardship) combine with dependency courts' reluctance to fund level 14 placements (Albert stayed in jail for four additional months despite a suitable placement being available because the dependency judge "failed to fund the placement", pg.6). The result is that the children with the greatest need for services are the last to receive them.
Upon return to court, Albert's lawyer doubted Albert's trial competence and the proceedings were suspended. A doctor opined that Albert was incompetent, the judge found same, and the court ordered Albert to remain in juvenile hall while the state attempted to render him competent.
After around 300 days of "competency training" the court held another hearing. A different doctor was appointed to assess Albert and found he remained incompetent. An employee of the business with whom the county contracted to provide competency training for Albert testified he had not passed their competency quiz yet, although his recent scores were improved over his past scores.
The judge felt that Albert was "exaggerating" his responses on the competency quiz and found Albert competent. Because the California Supreme Court has held a minor is presumed competent and has the evidentiary burden to prove incompetency by a preponderance of the evidence, all the trial judge has to do is reject the doctor's opinion and slump upon the presumption. After being found competent, Albert admitted a charge in each of the two petitions, was declared a delinquency ward and ordered into placement. He appealed.
A panel from the Second District affirms.
Two points, apart from the central legal issues, stand out from my reading of this opinion. First, California's Welfare and Institutions Code fails to provide statutory procedures to protect the interests of juveniles who are the subject of incompetency proceedings. It is excerebrose that an adult in the same situation would have been removed from jail and taken to a state hospital where he would have received treatment, supervision, and competency training from licensed physicians, nurses, and psychologists, while minors stay in jail and receive 30 minutes of competency training a week from a lowest-bidder outside contractor (I'll let the reader draw their own conclusions as to the quality of the "competency" program here). Because the Code is bereft of any humane procedure, a Superior Court Judge in Los Angeles laudably drafted a procedure, "the Protocol". However, the panel held that the "Protocol" did not have the force of law and thus, Albert was not entitled to its protections.
Second, kids who are dependency wards suffer unnecessarily when they are pending 602 petitions as social services' limacine efforts at finding suitable housing (anticipating a possible delinquency wardship) combine with dependency courts' reluctance to fund level 14 placements (Albert stayed in jail for four additional months despite a suitable placement being available because the dependency judge "failed to fund the placement", pg.6). The result is that the children with the greatest need for services are the last to receive them.
Monday, November 9, 2015
People v. Garness: Proposition 47 Didn't Affect PC 496d
Mr. Garness pled to knowingly receiving a stolen car worth 450 dollars, a violation of Penal Code section 469d(a), and admitted a prior strike. Post-Proposition 47, he petitions the court to reduce his felony 469d(a) conviction to a misdemeanor via Penal Code section 1170.18. The trial court denies his petition and here a Fourth District panel affirms.
The legal issue is one of interplay between two theft statutes. Penal Code 496(a) is the general receiving stolen property statute, applicable to "any" stolen property. Prior to November 5, 2014, 496(a) was a "wobbler" meaning it could be charged as a felony or a misdemeanor at the discretion of the prosecutor, regardless of the value of the property. Proposition 47, effective November 5, 2014, amended 496(a) to (save exceptions not applicable here) distinguish between property worth less than 950 dollars (misdemeanor) and property worth more than 950 (wobbler).
Penal Code 496 is not the only statute dealing with stolen property. There are additional sections dealing with specific property and/or specific defendants. For instance, 496a makes it a wobbler (regardless of value) for a scrap metal dealer to knowingly possess, among other items, copper wire he knows was stolen from a utility company. Section 496b makes it a misdemeanor (regardless of value) for a used book dealer to buy used books belonging to a public university without first verifying the authority of the seller. At issue here is section 496d(a) which states it is a wobbler (regardless of value) to knowingly possess a stolen car.
While Proposition 47 amended 496, the general statute, applicable to "any" stolen property, it did not amend the more specific sections, including 496d. Therefore, the panel concludes that had Mr. Garness' conviction occurred under the current law, it would not have necessarily been a misdemeanor, the requirement for relief under 1170.18. It is of no effect that Garness' conviction could have been under the general statute.
The legal issue is one of interplay between two theft statutes. Penal Code 496(a) is the general receiving stolen property statute, applicable to "any" stolen property. Prior to November 5, 2014, 496(a) was a "wobbler" meaning it could be charged as a felony or a misdemeanor at the discretion of the prosecutor, regardless of the value of the property. Proposition 47, effective November 5, 2014, amended 496(a) to (save exceptions not applicable here) distinguish between property worth less than 950 dollars (misdemeanor) and property worth more than 950 (wobbler).
Penal Code 496 is not the only statute dealing with stolen property. There are additional sections dealing with specific property and/or specific defendants. For instance, 496a makes it a wobbler (regardless of value) for a scrap metal dealer to knowingly possess, among other items, copper wire he knows was stolen from a utility company. Section 496b makes it a misdemeanor (regardless of value) for a used book dealer to buy used books belonging to a public university without first verifying the authority of the seller. At issue here is section 496d(a) which states it is a wobbler (regardless of value) to knowingly possess a stolen car.
While Proposition 47 amended 496, the general statute, applicable to "any" stolen property, it did not amend the more specific sections, including 496d. Therefore, the panel concludes that had Mr. Garness' conviction occurred under the current law, it would not have necessarily been a misdemeanor, the requirement for relief under 1170.18. It is of no effect that Garness' conviction could have been under the general statute.
Friday, November 6, 2015
People v. Farwell: When a Stipulation at Trial Equals a Guilty Plea
Mr. Farwell was tried for vehicular manslaughter and driving while his license was suspended. Farwell's lawyer wanted to shield the circumstances of the license suspension from the jury, so the defense entered into a stipulation that admitted all of the elements of the crime of driving while suspended. Subsequently the jury convicted Farwell of both vehicular manslaughter and driving while his license was suspended.
On appeal, Farwell argues his conviction for driving while his license was suspended must be reversed because the court did not advise him of his right to a jury trial, his privilege against compelled incrimination, and his right to confront his accusers (Boykin/Tahl advisements) prior to accepting Farwell's stipulation. Here is where I learned something new.
As the Second District's opinion states, when a stipulation contains facts satisfying each element of a crime, that stipulation is treated as an implied plea of guilty. Before a defendant stipulates to such facts, he must be advised of his Boykin/Tahl rights in order for his plea to satisfy the Constitutional requirement of being "knowing and voluntary". This is also true before a defendant stipulates to trial on a preliminary hearing transcript that gives him no hope of acquittal.
The trial court did not give Farwell a traditional Boykin/Tahl advisement contemporaneous with the court accepting the stipulation. The majority opinion believes that case law then directs them to examine the entirety of the record prior to the stipulation and determine if Farwell was advised of his rights prior.
The record showed that during jury selection and 402 hearings for which Farwell was present, all three of the Boykin/Tahl rights were mentioned and discussed. The majority finds that, under the totality of the record, Farwell had been indirectly advised of his rights sufficient to render his stipulation knowing and voluntary. They go on to (IMEO) gild the lilly by using Farwell's prior record to impute to him knowledge of his rights. They affirm his conviction.
Justice Mosk dissents. Mosk interprets the case law to break these kind of cases into two types: [1] "incomplete advisement" cases; and, [2] "silent record" cases. According to the dissent, "incomplete advisement" is when the court gives an advisement contemporaneous with the stipulation, but the advisement is incomplete, while "silent record" is when there is no contemporaneous advisement. Per Mosk, the "totality of the record" test is only applicable when the advisement is incomplete. In a "silent record" case, Mosk believes reversal is required. Based on a finding that Farwell's case is a "silent record" case, the dissent would reverse.
On appeal, Farwell argues his conviction for driving while his license was suspended must be reversed because the court did not advise him of his right to a jury trial, his privilege against compelled incrimination, and his right to confront his accusers (Boykin/Tahl advisements) prior to accepting Farwell's stipulation. Here is where I learned something new.
As the Second District's opinion states, when a stipulation contains facts satisfying each element of a crime, that stipulation is treated as an implied plea of guilty. Before a defendant stipulates to such facts, he must be advised of his Boykin/Tahl rights in order for his plea to satisfy the Constitutional requirement of being "knowing and voluntary". This is also true before a defendant stipulates to trial on a preliminary hearing transcript that gives him no hope of acquittal.
The trial court did not give Farwell a traditional Boykin/Tahl advisement contemporaneous with the court accepting the stipulation. The majority opinion believes that case law then directs them to examine the entirety of the record prior to the stipulation and determine if Farwell was advised of his rights prior.
The record showed that during jury selection and 402 hearings for which Farwell was present, all three of the Boykin/Tahl rights were mentioned and discussed. The majority finds that, under the totality of the record, Farwell had been indirectly advised of his rights sufficient to render his stipulation knowing and voluntary. They go on to (IMEO) gild the lilly by using Farwell's prior record to impute to him knowledge of his rights. They affirm his conviction.
Justice Mosk dissents. Mosk interprets the case law to break these kind of cases into two types: [1] "incomplete advisement" cases; and, [2] "silent record" cases. According to the dissent, "incomplete advisement" is when the court gives an advisement contemporaneous with the stipulation, but the advisement is incomplete, while "silent record" is when there is no contemporaneous advisement. Per Mosk, the "totality of the record" test is only applicable when the advisement is incomplete. In a "silent record" case, Mosk believes reversal is required. Based on a finding that Farwell's case is a "silent record" case, the dissent would reverse.
Thursday, November 5, 2015
People v. Hoffman : Harvey Waivers and Prop 47
Ms. Hoffman, a young lady with borderline personality disorder and a heroin habit, stole her parents' checkbook and forged 18 checks. Each check was for an amount less than 950 dollars (important, as we'll soon see) however the total of the checks was over 950 dollars. She also used a friend's access card to withdraw 25 dollars sans permission.
She was charged with 18 counts of forgery, one count of fraudulent use of an access card, and one count of grand theft. She pled guilty to seven of the forgery counts in return for dismissal of the balance of the counts. Also she entered a Harvey waiver as to the dismissed counts. At sentencing the court denied her 17B motion as to each of the forgery counts and placed her on felony probation, but told her he would be wont to grant the 17B motion later if she participated in drug treatment and got her life on track. She later violated her probation, relapsed, and upon return to court the judge kept working with her and offering her alternatives to incarceration to motivate her to continue to work on beating her addiction.
After November, 2015, Ms. Hoffman returned to court and petitioned under Penal Code section 1170.18 to have her forgery convictions reduced to misdemeanors. The trial court denied the petition on the ground that since the aggregate amount of the checks was over 950 dollars, the case "fell outside the spirit" of Proposition 47.
The Second District panel reverses. The Attorney General concedes that the law did not allow the trial court to add up the individual forged checks; each check was its own crime (and under 950 dollars). But, the AG argues the Harvey waiver would allow the trial court to use the dismissed counts (grand theft and access card fraud) to find Hoffman falls "outside the spirit". Nope says the panel. A Harvey waiver allows the court to use the facts of dismissed counts within the applicable statutory framework, here Penal Code section 1170.18.
Because section 1170.18 contains no reference to spirits, the panel takes the "spirit" argument as to Proposition 47 and places it back from where it came, cases involving a defendant's invitation to the court to "strike a strike" (Romero). Where the statute is clear, you must follow it, regardless of the borders of the pneuma rising from the code.
As an aside, I calculate Ms. Hoffman's theoretical custody exposure to remain the same. Her felony exposure was seven years in the county jail (3 yr max for the first forgery, plus consecutive 8 months sentences for each of the remaining 6 forgeries). With all seven counts now misdemeanors and the one-third-of-middle-term rule now inapplicable, she could still receive seven years in the county jail.
However, I agree with the trial judge that the superior result would be Ms. Hoffman overcoming her addiction and becoming a productive person.
She was charged with 18 counts of forgery, one count of fraudulent use of an access card, and one count of grand theft. She pled guilty to seven of the forgery counts in return for dismissal of the balance of the counts. Also she entered a Harvey waiver as to the dismissed counts. At sentencing the court denied her 17B motion as to each of the forgery counts and placed her on felony probation, but told her he would be wont to grant the 17B motion later if she participated in drug treatment and got her life on track. She later violated her probation, relapsed, and upon return to court the judge kept working with her and offering her alternatives to incarceration to motivate her to continue to work on beating her addiction.
After November, 2015, Ms. Hoffman returned to court and petitioned under Penal Code section 1170.18 to have her forgery convictions reduced to misdemeanors. The trial court denied the petition on the ground that since the aggregate amount of the checks was over 950 dollars, the case "fell outside the spirit" of Proposition 47.
The Second District panel reverses. The Attorney General concedes that the law did not allow the trial court to add up the individual forged checks; each check was its own crime (and under 950 dollars). But, the AG argues the Harvey waiver would allow the trial court to use the dismissed counts (grand theft and access card fraud) to find Hoffman falls "outside the spirit". Nope says the panel. A Harvey waiver allows the court to use the facts of dismissed counts within the applicable statutory framework, here Penal Code section 1170.18.
Because section 1170.18 contains no reference to spirits, the panel takes the "spirit" argument as to Proposition 47 and places it back from where it came, cases involving a defendant's invitation to the court to "strike a strike" (Romero). Where the statute is clear, you must follow it, regardless of the borders of the pneuma rising from the code.
As an aside, I calculate Ms. Hoffman's theoretical custody exposure to remain the same. Her felony exposure was seven years in the county jail (3 yr max for the first forgery, plus consecutive 8 months sentences for each of the remaining 6 forgeries). With all seven counts now misdemeanors and the one-third-of-middle-term rule now inapplicable, she could still receive seven years in the county jail.
However, I agree with the trial judge that the superior result would be Ms. Hoffman overcoming her addiction and becoming a productive person.
Wednesday, November 4, 2015
In Re Bianca S. -- When the Adults are the Delinquents
This case is an excellent example of kicking someone when they are down. The someone(s) here are two thirteen-year-old girls previously let down by their families and placed into custody of the state. The subsequent kicking was done in sequential order by the county's Health and Human Services, the police, the probation department, the San Diego District Attorney, and then the Honorable Roderick Shelton.
The two girls had been taken from their families and put in the Polinsky Center, a temporary emergency shelter for children removed from their families for their own safety. While at the shelter the two girls knocked over a vending machine and took some goodies. They ran away briefly but came back. The good folks at the Polinsky Center called the police who came and arrested the 13 year-old girls and took them to juvenile hall. It was the first offense for either girl. The San Diego District Attorney filed a petition to declare the girls delinquency wards.
At their detention hearing, the probation officer recommended the judge keep the girls in juvenile hall despite the detention screening forms' conclusions that there was no basis for mandatory detention and an insufficient basis for discretionary detention. The probation officer recommended detention based on conclusions that the girls were "likely to flee" and keeping them locked up was "necessary for the protection" of the people and property of the state of California. The facts averred to support these conclusions were [1] a social worker's statement that Bianca had "demonstrated poor behavior" and [2] that if Bianca was taken back to the Polinsky Center she would be "negatively influenced by her peers". The good judge found these two statements sufficiently persuasive to justify the recommended findings and overcome the legal presumption against detention. He ordered the girls locked up in juvenile hall until their next court date.
The girls' petitioned for, and received, writ relief. These facts don't require much legal commentary; Judge Shelton blatantly erred in applying the law. The real reason these girls were detained is because they were dependency wards and their social workers couldn't be bothered to find them homes. No kid whose first offense is stealing from a vending machine remains incarcerated if she has an adequate family to which to return. Wisely the law clearly does not allow a judge to lock up a child for a minor offense just because they have been removed from their family and social services hasn't found a home for them.
Anybody who has an interest in how to safely reduce incarceration rates should parse this opinion carefully. Two young girls have been removed from their families for their own safety (their parents can't or won't provide the minimum of care). Obviously the girls are going to have psychological issues. Then you put them in a temporary emergency shelter with 200 other neglected, abused, and emotionally damaged kids. You have vending machines in the shelter. Why? To taunt the children with goodies they can't have (unless this is a temporary shelter for neglected children of hedge fund managers)? The girls, no doubt despite having received award-winning temporary shelter cuisine, steal some of the goodies by knocking over the vending machine.
Now what would a reasonable adult do in response? It is a moot question because whoever staffs the Polinsky center clearly is not reasonable. Some dolt calls the police on the two girls. Someone who I assume has been given the duty to act in the children's best interest, determines that a good handcuffing is an underrated psychological tool for neglected, hungry, children. The police show up and make a professional decision to arrest these girls. So adult judgement is now 0 for 2. Enter the probation department, whose choice it is to either counsel the girls informally or send the case to the district attorney for charging. They decide these girls need a good formal charging and send it to the district attorney, who then files a case against the girls, setting the table for Judge Roderick to make the erroneous detention order.
It appears not one member of the conveyor belt of government job-holders fired a single synapse during their part in this. Do you want a recipe for mass incarceration? Here it is: [1] take neglected and damaged children; [2] cut them no slack, rather hold them to even more rigid standards than children raised in good homes, [3] when their pain finally emerges, don't try to understand from where it came or provide reassurance; rather, [4] arrest them and introduce them into the criminal justice system, sending the message that this is where they belong; then, [5] rather than release them, aggregate all of the damaged children whose cries for help you've responded to with governmental violence in one place where older and more experienced troubled children can exert an unhealthy influence over the youngers; and, [6] express disbelief at the adult incarceration rate.
The recipe has been around for a while and while everyone claims to not like the taste of the final product, we keep voting to purchase the same ingredients.
The two girls had been taken from their families and put in the Polinsky Center, a temporary emergency shelter for children removed from their families for their own safety. While at the shelter the two girls knocked over a vending machine and took some goodies. They ran away briefly but came back. The good folks at the Polinsky Center called the police who came and arrested the 13 year-old girls and took them to juvenile hall. It was the first offense for either girl. The San Diego District Attorney filed a petition to declare the girls delinquency wards.
At their detention hearing, the probation officer recommended the judge keep the girls in juvenile hall despite the detention screening forms' conclusions that there was no basis for mandatory detention and an insufficient basis for discretionary detention. The probation officer recommended detention based on conclusions that the girls were "likely to flee" and keeping them locked up was "necessary for the protection" of the people and property of the state of California. The facts averred to support these conclusions were [1] a social worker's statement that Bianca had "demonstrated poor behavior" and [2] that if Bianca was taken back to the Polinsky Center she would be "negatively influenced by her peers". The good judge found these two statements sufficiently persuasive to justify the recommended findings and overcome the legal presumption against detention. He ordered the girls locked up in juvenile hall until their next court date.
The girls' petitioned for, and received, writ relief. These facts don't require much legal commentary; Judge Shelton blatantly erred in applying the law. The real reason these girls were detained is because they were dependency wards and their social workers couldn't be bothered to find them homes. No kid whose first offense is stealing from a vending machine remains incarcerated if she has an adequate family to which to return. Wisely the law clearly does not allow a judge to lock up a child for a minor offense just because they have been removed from their family and social services hasn't found a home for them.
Anybody who has an interest in how to safely reduce incarceration rates should parse this opinion carefully. Two young girls have been removed from their families for their own safety (their parents can't or won't provide the minimum of care). Obviously the girls are going to have psychological issues. Then you put them in a temporary emergency shelter with 200 other neglected, abused, and emotionally damaged kids. You have vending machines in the shelter. Why? To taunt the children with goodies they can't have (unless this is a temporary shelter for neglected children of hedge fund managers)? The girls, no doubt despite having received award-winning temporary shelter cuisine, steal some of the goodies by knocking over the vending machine.
Now what would a reasonable adult do in response? It is a moot question because whoever staffs the Polinsky center clearly is not reasonable. Some dolt calls the police on the two girls. Someone who I assume has been given the duty to act in the children's best interest, determines that a good handcuffing is an underrated psychological tool for neglected, hungry, children. The police show up and make a professional decision to arrest these girls. So adult judgement is now 0 for 2. Enter the probation department, whose choice it is to either counsel the girls informally or send the case to the district attorney for charging. They decide these girls need a good formal charging and send it to the district attorney, who then files a case against the girls, setting the table for Judge Roderick to make the erroneous detention order.
It appears not one member of the conveyor belt of government job-holders fired a single synapse during their part in this. Do you want a recipe for mass incarceration? Here it is: [1] take neglected and damaged children; [2] cut them no slack, rather hold them to even more rigid standards than children raised in good homes, [3] when their pain finally emerges, don't try to understand from where it came or provide reassurance; rather, [4] arrest them and introduce them into the criminal justice system, sending the message that this is where they belong; then, [5] rather than release them, aggregate all of the damaged children whose cries for help you've responded to with governmental violence in one place where older and more experienced troubled children can exert an unhealthy influence over the youngers; and, [6] express disbelief at the adult incarceration rate.
The recipe has been around for a while and while everyone claims to not like the taste of the final product, we keep voting to purchase the same ingredients.
Monday, November 2, 2015
*REVIEW GRANTED People v. Cuen : More Proposition 47
This opinion was first filed October 8, 2015, as unpublished and has now been ordered published.
Cuen pleads to two felony counts of Penal Code section 484e(d), grand theft by way of unlawful possession of "access card information". He later petitions pursuant to Penal Code section 1170.18 to reduce these 484e(d) convictions to misdemeanors. The trial court denies the petitions and Cuen appeals. This panel from the Fourth District affirms, holding a conviction for 484e(d) is not eligible for reduction to a misdemeanor pursuant to 1170.18.
The opinion is short; too short because it fails to adequately address the central question. To wit, is access card information "personal property" for purposes of theft statutes? Starting with Penal Code section 484e(d) defining a form of grand theft, Penal Code 1170.18 allows a convict to petition for resentencing if the conviction would have been a misdemeanor under the newly enacted Penal Code section 490.2 which states,
Cuen pleads to two felony counts of Penal Code section 484e(d), grand theft by way of unlawful possession of "access card information". He later petitions pursuant to Penal Code section 1170.18 to reduce these 484e(d) convictions to misdemeanors. The trial court denies the petitions and Cuen appeals. This panel from the Fourth District affirms, holding a conviction for 484e(d) is not eligible for reduction to a misdemeanor pursuant to 1170.18.
The opinion is short; too short because it fails to adequately address the central question. To wit, is access card information "personal property" for purposes of theft statutes? Starting with Penal Code section 484e(d) defining a form of grand theft, Penal Code 1170.18 allows a convict to petition for resentencing if the conviction would have been a misdemeanor under the newly enacted Penal Code section 490.2 which states,
“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. . . ."
Section 484e(d) is a provision of law defining grand theft, so Cuen appears to be on solid footing at least through the introductory clause. The first part of the second clause requires Cuen to show his crime was "obtaining any property by theft". Obviously Cuen satisfies this, he obtained "access card information", intangible property, by theft. The second part of this clause is troubling because in stating the dollar threshold, it enumerates four types of property. The language goes from the general to the specific (usually it is the converse). The first issue that really should have been addressed in this opinion is the effect of the subsequent enumeration of the types of property (money, labor, real or personal) upon the initial general language (obtaining any property by theft).
But the panel just ignores the tension created by the language, and quotes only the second half of the clause in support of their finding that 490.2 is unambiguous (creating a new judicial cannon- claritatem via omissionis). The panel's next task is to determine if "personal property" includes "access card information". They find it doesn't, supporting their conclusion with a dubious citation to People v. Molina for the authority that theft of access information is a "qualitatively different personal violation than that of more tangible property". Maybe I missed it, but in reading Molina, I didn't see support for such a claim. The phrase "more tangible property" is pure tosh. There is tangible property and intangible property, there are not degrees of tangibility.
Further disappointing is that the panel doesn't even mention that the Penal Code defines "personal property" (PC section 7), it doesn't examine access card information within the context of the statutory definition, and doesn't examine published case law that has already considered whether information such as PIN numbers and passkey information is included within section 7's definition of "personal property" (P v. Kozlowski and P v. Kwok hold that PIN numbers and key information are property for extortion purposes and theft purposes).
After determining access card info isn't personal property, the panel attempts to use the cannon of the "specific controls the general" to say that because 484e(d) defines a form of grand theft which does not reference the value of the stolen property, section 490.2 is inapplicable as being controlled by the more specific 484e(d). This is just wrong. First, there is only need to resort to the specific/general cannon where there is conflict. There is no conflict here, 490.2 was passed after 484e(d) and specifically addresses 484e(d) (Notwithstanding 487 or any other provision of law defining grand theft). And even if there could be said to be conflict, application of leges posteriores priores contrarias abrogant resolves the conflict in favor of 490.2.
I am not saying I cannot be convinced that Mr. Cuen's convictions were ineligible for Prop47 relief, but this opinion didn't come close.
Further disappointing is that the panel doesn't even mention that the Penal Code defines "personal property" (PC section 7), it doesn't examine access card information within the context of the statutory definition, and doesn't examine published case law that has already considered whether information such as PIN numbers and passkey information is included within section 7's definition of "personal property" (P v. Kozlowski and P v. Kwok hold that PIN numbers and key information are property for extortion purposes and theft purposes).
After determining access card info isn't personal property, the panel attempts to use the cannon of the "specific controls the general" to say that because 484e(d) defines a form of grand theft which does not reference the value of the stolen property, section 490.2 is inapplicable as being controlled by the more specific 484e(d). This is just wrong. First, there is only need to resort to the specific/general cannon where there is conflict. There is no conflict here, 490.2 was passed after 484e(d) and specifically addresses 484e(d) (Notwithstanding 487 or any other provision of law defining grand theft). And even if there could be said to be conflict, application of leges posteriores priores contrarias abrogant resolves the conflict in favor of 490.2.
I am not saying I cannot be convinced that Mr. Cuen's convictions were ineligible for Prop47 relief, but this opinion didn't come close.
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