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

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

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

The Second District affirms.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Luckily for Californians, our Supreme Court agrees with me.  

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

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

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

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

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

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

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

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

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

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

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

The Third District affirms.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The First District affirms.

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

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

And the elements of 242, battery, being:

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

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

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

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

P v. Colbert (6th Dist.) Entering a Retail Shop With an Intent to Steal From a Back Office Is Not a Shoplift, PC459.5, Creating a Split Within Districts

Back in 1996, Mr. Colbert and an accomplice committed a series of commercial burglaries.  They would enter a retail store, and while one of them would distract the clerk, the other man would sneak into the store's back office and steal whatever was therein.  For a string of such burglaries, Colbert was convicted of multiple counts of felony commercial burglary.

Following the addition of sections 459.5 and 1170.18 to the Penal Code, Colbert returned to the trial court and petitioned to have a number of his felony commercial burglary convictions (those involving less than 950 dollars) reduced to misdemeanor shoplifts under PC 1170.18.  The trial court denied Colbert's petitions and he appealed.

Here the Sixth District affirms.

The opinion is a laughable and inept attempt to mask an unsupported inductive impulse as an exercise in statutory construction.  Were it not, the opinion would certainly have examined two recent opinions, one from the California Supreme Court, that examine similar facts and arrive at conclusions contrary to the one here (albeit the Supreme Court case dealt with a different statute).

The applicable statutory language in 495.5 is as follows.

 [S]hoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary[.]

The majority's reasoning is as follows; while the stores at issue are commercial establishments, they contain within them non-commercial establishments, to wit, the business offices.  To arrive at this conclusion, the panel notes the definition of commercial establishment as a place "relating to, or involved in the buying and selling of goods".  Okay so far.  But then it, without evidence or explanation, finds that the business offices were not related to the buying or selling of goods.  Huh?  Certainly the offices were not used for the display of merchandise, but that doesn't mean the offices were not related to the buying and selling of goods.  Unless the offices were used exclusively as living quarters or as gymnasiums, whatever went on within them undoubtedly related to the buying and selling of goods, e.g. placing orders, storing receipts, performing bookkeeping, etc.

To make this logical omission appear persuasive, the opinion must ignore both P v. Hallam and P v. Garcia.  The opinion achieves the latter and fails in the former.

There is a disciplined dissent by P.J. Rushing.  After reminding the majority that the crime of burglary is completed upon the initial entrance, he examines P v. Hallam, and finds it on-point.

As Hallam and the tripe at hand are irreconcilable, look for the California Supreme Court to possibly grant review on this issue in the future.

 

Harris v. Superior Court (Cal Supreme Ct.) There Is No "Benefit of the Bargain" Exception to PC 1170.18.

I previously posted on the Court of Appeal decision in this matter (found here).  

Mr. Harris bonked a man on the head and took the man's phone.  He was charged with robbery, PC 211, and pleaded down to felony grand theft from a person, PC 487 in exchange for a sentence of six years in prison (Harris' exposure on a 211 plea was 15 years).  

In November of 2014, while Harris was in prison, California passed Proposition 47, which reduced certain felony PC 487 crimes (Harris' included) to misdemeanors.  Harris petitioned the trial court to reduce his 487 to a misdemeanor.  The State, understandably, felt cheated and opposed the motion.  Additionally, should the motion be granted, the State wanted to be able to withdraw from the 487 plea agreement and reinstate the 211 charges.  The trial court agreed with the State and gave Harris the Hobson's choice of withdrawing his petition and going quietly back to prison or asserting his statutory right under PC 1170.18 and exposing himself to a 15 year sentence.

Harris petitioned for a writ of habeas corpus which was denied by the Second District in a 2-1 decision.  The California Supreme Court granted review and now reverses.  

The analysis here is interesting, in part, for what it omits, any review or discussion of the lower court's analysis.  In my opinion, this is the Supreme Court giving the lower court's analysis the attention it deserves.

The crux of the issue is the intersection of two prior holdings.  One, Doe v. Harris, that held that plea agreements implicitly incorporate any subsequent change in the law.  The other, P v. Collins, held that when, between the entry of a plea pursuant to a plea bargain and sentencing, a change in law results in the plea being to a crime that is no longer a crime, the State is permitted to withdraw from the plea bargain and reinstate the (still criminal) charges that were dismissed in consideration for the plea to the (now) non-crime.

Justice Chin concludes both that Doe controls and that Collins is distinguishable, in part, because here the change in law occurred post-sentencing.

Now Harris will return to the trial court to have his PC 1170.18 petition heard.  

P v. Rendon (3rd Dist) For Purposes of PC 476, the Value of Forgery Raw Materials Are Immaterial

Early in 2014, Ms. Rendon was pulled over and her backpack searched.  Inside her backpack were two counterfeit 100 dollar bills and three counterfeit 20 dollar bills.  Also in the backpack were 200 "security strips" (the plastic strips woven into 100 bills), a couple dozen Benjamin Franklin image templates, and a wad of paper.  For this, Redon was charged with, and pleaded guilty to, felony forgery, PC 476. 

Later in 2014, after the November election, Rendon petitioned the trial court to reduce her 476 conviction to a misdemeanor under PC 1170.18.  The trial court denied the petition because it found that while the forged bills were worth 230 dollars, the raw materials in the backpack were sufficient to make more than 950 dollars in forged bills, exceeding the 950 dollar misdemeanor/felony threshold.  Rendon appealed.

The Third District reverses.

The panel disposes of the State's first argument by a simple statutory analysis.  Section 476 criminalizes the possession of any fictitious bill or note, not blank paper, security strips, or templates.  Because the sum of the fictitious bills in the backpack were 230 dollars, well below the 950 dollar threshold, Rendon's forgery conviction is eligible for relief.

The State then trots out the moth-ridden "benefit of the bargain" argument, asserting that they should be able to rescind the plea agreement if Rendon's petition is granted.  This argument is premised on a 1978 case, P v. Collins.   Admirably, the panel conducts a close reading of Collins and concludes that it doesn't really support the State's position, as Collins is premised on the principle that a defendant should not be able to avoid the possibility of incarceration by taking advantage of a subsequent change in the law that renders his crime of conviction, pursuant to a plea agreement, no longer criminal.

This is not the case here (nor in any 1170.18 case) and the argument is properly rejected.

P v. Navarette (5th Dist) Murder Conviction in Mexico Does Not Constitute a "Strike" Under California Law

Mr. Navarette was convicted of various crimes against a female companion.  The trial judge found that Navarette had a prior conviction for murder in Mexico and that this conviction constituted a "strike" and a prior "serious felony" under California law.  Consistent with this finding, the trial court enhanced Navarette's sentence under PC 667(a)(1) and PC 1170.12(c)(1).  Navarette appealed.

The Fifth District reverses the findings that Navarette's Mexican murder conviction constituted a "strike" and a "serious felony", and remands for resentencing.

The issue is whether murder in Mexico includes all the elements of murder in California, and if not, whether the record of conviction demonstrates that all of the elements of a California murder were found in the Mexican murder.  

In Mexico, murder is the [a] illegal deprivation of the life of another; [b] due to an external cause, imputable to a man as a result of his intentional or imprudent act.

In California, murder is when a defendant [1] commits an act that causes the death of another person, and [2] when the defendant acted he acted with malice aforethought, and [3] he killed without lawful excuse or justification.

In the end it is element [3] that carries the day.  In California, the absence of self-defense is an element of the crime; the State must prove it beyond a reasonable doubt.  In contrast, Mexico places the burden of proving self defense upon the accused, meaning it is not an element of the offense.  Hence, murder in Mexico does not include all the elements of murder in California.

The State points out that the Mexican appeals court found that Navarette failed to prove self-defense beyond a reasonable doubt.  So, the State argues, even if the absence of self-defense is not an element of Mexican murder, the record here demonstrates such absence is present.

The panel responds that a reviewing court cannot resolve factual disputes at issue in the previous case.  That the Mexican courts found the evidence insufficient to prove beyond a reasonable doubt that Navarette acted in self-defense is not tantamount to a finding that the evidence proved beyond a reasonable doubt that Navarette did not act in self-defense (as required in California).

P v. Wright (2nd Dist, Div.1) SVP Commitment Reversed For Insufficient Evidence

Mr. Wright, at age 26, was convicted of lewd acts upon a 14 year-old girl.  Then at age 30, Wright committed lewd acts upon two more girls, one 14 and one 15.  At age 36, Wright engaged in oral copulation with a 17 year old girl.  

Upon his release from prison, the State sought to declare Wright a sexually violent predator (SVP) and civilly commit him for the rest of his life.  A bench trial was held.  

The State's star witness was one Dr. Musacco.  Musacco opined that Wright suffered from hebephilia, a controversial disorder where a person is attracted to pubescent kids, not pre-pubescent (pedophilia) and not post-pubescent (is this a disorder?).  Musacco testified that the diagnoses required knowing more than the victim's age since people mature at different ages (as a former 13 year-old male I can attest to this fact).  However, Musacco had no knowledge of the physical development of any of the victims.  Accordingly, Musacco waffled on whether the diagnosis was justified, couching the opinion on the "assumption" that the victims were physically pubescent.  

The trial court accepted this tripe and Wright appealed.  The Second District reverses.    

To justify an SVP commitment, the State must prove beyond a reasonable doubt that [1] Wright committed a sexually violent offense against two or more victims (check), [2] Wright has a diagnosed mental disorder, and [3] the disorder makes him likely to engage in sexually violent criminal behavior.  The problem is number two.  Musacco diagnoses Wright with hebephilia, but acknowledges that the diagnosis is dependent upon information Musacco didn't have, the physical characteristics of the victims.  

This is too much for the panel, which while acknowledging the deference traditionally given to experts, cannot ignore the fact that Musacco had no legitimate factual basis upon which to rely.  Musacco admitted that 14 year-old girls may appear pubescent or post-pubescent, and that it is impossible to know which absent some evidence of their appearance at the relevant time.  

Because Musacco's opinion was supported by assumption, not fact, the verdict is reversed for insufficient evidence.  

P v. Lopez (2nd Dist, Div.6) A Juvenile Cannot Be Penalized For Exercising His Constitutional Rights

While a juvenile, Master Lopez committed an aggravated kidnapping.  It was 1994 and life without the possibility of parole for juveniles was all the rage.  Lopez was sentenced to life in prison without the possibility of parole (LWOP), plus nine years.  

Subsequently, the United States Supreme Court held that giving juveniles LWOP sentences for non-homicide offenses violates the Eighth Amendment's prohibition against cruel and unusual punishment.  Lopez then had the cheek to assert his Constitutional right and petitioned for a writ of habeas corpus.  The trial court acknowledged the U.S. Supreme Court's holding and modified Lopez's sentence to life with the possibility of parole.

Following this sentence modification, the California legislature created Penal Code section 1170(d)(2), which allowed people who were under 18 at the time of crimes for which they were sentenced to LWOP to petition the trial court for a recall of sentence.

Lopez filed his 1170(d)(2) petition (25 years after his crime) and it was granted.  Lopez was resentenced to life with parole, the execution of sentence was suspended and Lopez was placed on probation for five years.  The State appealed.

The Second District affirms.

Ignoring the Jewish axiom to "loath mastery over others", the State argues the following:  because Lopez had earlier asserted his Eighth Amendment right to be free from an LWOP sentence, he forfeited his PC 1170(d)(2) right to petition for recall of sentence.  In other (cynical) words, because Lopez had earlier asserted his right to be free of an unconstitutional sentence and was given life with the possibility of parole, he gave up his right to a 1170(d)(2) petition.  

The Second District will have nothing of this, and affirms.  My only criticism is that the form of analysis could have been more disciplined.  The statute at issue is temporally ambiguous, providing the gateway to a look into the legislative intent behind the law.  As punishing defendants for asserting their Constitutional rights is not a recognized legislative intent, any future textual argument can thus be foreclosed.

But this is niggling.  The decision is sound.

P v. Cady (4th Dist, Div.1) Driving Under the Influence of Alcohol is a Lesser Included of Driving Under the Combined Influence of Alcohol & Drugs

Mr. Cady got loaded and decided to drive a car.  He ended up killing and injuring numerous persons.  Among the crimes for which Cady was convicted were one count each of driving under the influence of alcohol, causing injury, Vehicle Code section 23153(a), and driving under the combined influence of alcohol and drugs, Vehicle Code section 23153(f).  Cady appealed.

The Fourth District reverses the 23153(a) conviction, finding that 23153(a) is a lesser included offense of 23153(f).

This opinion succeeds where the panel in In Re Jonathan R. fails.  The panel here actually engages in a thoughtful application of the elements test.  Its finding that all the elements of driving under the influence of alcohol are contained within the elements of driving under the combined influence of alcohol and drugs is hardly surprising.  The State tries to split hairs and argues that a person can actually be under the influence of alcohol and drugs without being under the influence of alcohol if the influence is the synergistic product of the consumption of alcohol with drugs, when the amount of alcohol consumed is insufficient on its own.  

The panel disagrees.

P v., Reyes-Tornero (5th Dist.) The "Relevant Act" for Purposes of PC 654 Analysis Is the Crime not the Enhancement.

This case involves a weekly neighborhood card game.  Four gentlemen were playing cards outside when Mr. Reyes-Tornero (Reyes) approached with a pistol.  Reyes pointed the gun at each of the four men and demanded they hand over their wallets.  One of the men refused to hand over his wallet and Reyes shot him in the face.  Thankfully the man survived (and actually continued to pummel Reyes).

Among other crimes, Reyes was convicted of felony assault as to all four card players.  Found true as to all four assaults was an enhancement that Reyes inflicted great bodily injury (GBI) during the commission of each assault.  Reyes was sentenced accordingly.  He appealed, arguing that the GBI enhancement could only be imposed once because he only inflicted GBI upon one of the victims, despite the jury finding the GBI was inflicted during each of the four assaults.

The Fifth District affirms.

The issue in this case is Penal Code section 654.  Section 654 prohibits multiple punishments for the same "act or or omission".  Section 654 is important because, due to the expansive Penal Code, it is nearly impossible to do something illegal without violating multiple laws.  For example, a convicted felon driving a car with an unregistered, loaded, pistol in the glove box violates numerous laws (felon in possession, possession of a concealed firearm, etc.).  The felon can be convicted of multiple offenses for his "act" of driving with the gun, but under 654, he cannot be punished for more than one of the crimes.

Here the issue is not multiple crimes, but multiple enhancements.  Reyes assaulted four men, but injured only one.  The crimes constitute four separate acts; Reyes assault each victim.  However all four enhancements derive from the same act, the shooting of one of the men.  If, under 654, the relevant "act" that cannot be punished more than once is the enhancement, the shooting, then Reyes cannot be punished for the remaining three enhancements.  But if the relevant act is the crime to which the enhancement attaches, 654 provides no impediment to multiple punishments, since Reyes did commit four acts of assault.

Relying on a California Supreme Court decision (P v. Oates), the panel determines that the relevant act is the crime and affirms the multiple punishments.  In a concurrence, Justice Poochigan acknowledges that the rule in Oates compels the result, but writes, quite thoughtfully, that the California Supreme Court may wish to reexamine the Oates rule in the context of multiple GBI enhancements where there is only one injury.

P v. Sweeney (4th Dist, Div.2) An Otherwise Prop47 Eligible Offense Does Not Become Ineligible By Way Of a PC 186.22(b) Admission

In 2003, among other crimes, Mr. Sweeney was convicted of two felony counts of receiving stolen property, PC 496(a).  Each count of 496(a) was enhanced by an admission pursuant to PC 186.22(b), an enhancement application to felony offenses.

Fast forward to 2015 and Sweeney files a PC 1170.18 petition to reduce his two 496(a) felonies to misdemeanors claiming that had Sweeney committed the 496(a) offenses after November 4, 2014, they would be misdemeanors.  The trial court found Sweeney ineligible for 1170.18 relief on the ground that had Sweeney committed the 496(a) offenses after the passage of Proposition 47, the misdemeanor gang enhancement in PC 186.22(d), would have elevated the 496(a) offenses to felonies (until and unless the trial court declared these wobblers misdemeanors).  Sweeney appealed.

The Fourth District reverses.

As in all 1170.18 petitions, the issue is whether the crime at issue would have necessarily have been a misdemeanor if committed after the November 4, 2014, passage of Proposition 47.  If the property at issue in the 496(a) offenses was worth 950 dollars or less, the 496(a) would have been a misdemeanor offense after November 4, 2014.  As the felony gang enhancement, PC 186.22(b) would not have been applicable, Sweeney argues the crime would have necessarily been a misdemeanor.

The State replies that while the 186.22(b) felony gang enhancement would not have been applicable, the 186.22(d) misdemeanor gang enhancement would have been applicable and would have elevated the misdemeanor 496(a) counts to wobblers (felonies until and unless the trial court later decided to reduce them to misdemeanors).

The panel concludes that PC 186.22(d) and 186.22(b) are mutually exclusive and because 186.22(d) was never alleged, Sweeney's 496(a) convictions would have necessarily been misdemeanors if the property at issue was 950 dollars or less.  They remand the case for Sweeney to refile his petition and prove the property at issue was worth 950 dollars or less.  

In re Jonathan R. (1st Dist, Div.1) PC 245(a)(1) Is a Necessarily Included Offense of PC 245(a)(4).

Master Jonathan used a knife to stab another kid during a fight.  A juvenile court found true that Jonathan had committed PC 245(a)(1), assault with a deadly weapon (ADW) and PC 245(a)(4), assault by means of force likely to cause great bodily injury.  Jonathan appealed and argued that 245(a)(1) and 245(a)(4) are not separate crimes, rather they are just descriptions of different ways to commit the crime of aggravated assault.

The First District reverses and vacates the 245(a)(4) conviction.  But not for the reason argued, rather because the panel finds that 245(a)(1) is necessarily included within 245(a)(4).

I do not believe this opinion will hold up for two reasons.  First, the legal reasoning is faulty.  Second, because California's Penal Code and Welfare and Institutions Code treat the two offenses differently for purposes of the "strike" laws and DJF eligibility, the holding is unworkable in practice.

The opinion is sloppy due its failure to apply the legal rule it purports to use in examining the issue.  The California Supreme Court has traditionally used the "elements test" to determine when an offense is necessarily included within the other.  If all the elements of offense A are always included in offense B, A is a necessarily included offense of B. Here the panel gives lip (pen?) service to the test, but never gets around to applying it.    

Maybe the reason they eschew a facial application of the test is because doing so would block the panel from reaching its desired result.  To wit, use of force is not an element of assault with a deadly weapon. The elements of ADW, PC 245(a)(1) are as follows. 

     [1] Defendant did an act,
     [2] with a deadly weapon,
     [3] that by its nature would directly and probably result in the application of force to a person.

Compare to the elements of PC 245(a)(4)

     [1] Defendant did an act,
     [2] That by its nature would directly and probably result in the application of force to a person,
     [3]  The force used was likely to produce great bodily injury.

The panel tries to convince us that any act with a deadly weapon likely to result in the application of force necessarily requires the use of force likely to produce great bodily injury.  However, prior appellate decisions make this task difficult.

For years appellate courts have rejected challenges to ADW convictions based upon the argument that the defendant used no physical force on the basis that force is not an element of ADW.  Merely holding a sharp pencil to the neck of another person, without use of any force, is an assault with a deadly weapon.  P. Page, 123 Cal. App. 4th 1472.  Holding a pellet gun at a policeman, without pulling the trigger, is an assault with a deadly weapon, In re D.T. 237 Cal. App. 4th 693.  The crime of assault with a deadly weapon can be committed by the threatened use of force; the use of force is unnecessary.  P v. McCoy 25 Cal. 2d 177.  

IMEO, the panel's error is equating the theoretical application of force to the victim, which need not occur, with the actual use of force by the defendant, which must occur.  ADW does not require the defendant himself use force likely to cause GBI, only that he do something with a weapon that will likely result in the theoretical application of force to the victim.  PC 245(a)(4), however, requires the defendant to actually use physical force (though it need not be transmitted to the victim).  By equating the theoretical "likely" force upon the victim which needn't occur, with the actual force generated by the defendant which must occur, the panel goes astray.

P v. Pak (2nd Dist, Div.4) For a Burglary Premised on Pawning Stolen Property, Eligibility for PC 1170.18 Relief Depends Upon the Value Received

In 2011, Ms. Pak went to a pawn shop to pawn some stolen property, a camcorder, a watch, and some earrings.  The pawn shop took the loot and gave Pak a sum of money.  For this, the State charged Pak with, and she pleaded to, felony second degree burglary.  

Fast forward to 2015, Pak files a PC 1170.18 petition to reduce her conviction to misdemeanor shoplifting.  She claims the pawn shop gave her less than 950 dollars for the loot.  The State responds, and Pak agrees, that the fair market value of the loot was over 5K.  Thus you can see the issue develop.  "Shoplifting" requires the following.

the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)   PC 459.5

So does "property" in Pak's case refer to [a] the loot she carried into the pawn shop, [b] the amount of money she "intended" to get from the pawn broker for the loot, or [c] the amount of money Pak actually received from the pawn broker?  

The trial court found it was [b].  Reasoning that Pak intended to get more than 950 dollars for loot worth 5K, it denied the petition.  In doing so, the trial court presciently observed the issue was a good one for an appeal.  An appeal followed.

The Second District disagrees with the trial court, instead finding the "property" at issue here refers to [c] the amount of money Pak received for the loot.  The panel does affirm the denial though, albeit kindly without prejudice, as Pak did not present any evidence of what amount she received.

The opinion is a tight, textual analysis.  "[V]alue of the property taken or intended to be taken" is a disjunctive phrase containing the past participle of "to take".  As Pak already had possession of the loot when she entered the pawn shop, it makes little sense to say the property she intended to take was said loot.  What she intended to "take" from the pawn shop was cash.  Here, the disjunctive language becomes important.  The panel interprets the phrase to be binary.  If the burglar intends to get more than 950 bucks for the loot, but never completes the transaction, the operative "amount" is greater than 950 dollars and her crime is not a shoplift.  But where, as here, the burglar actually pawns the loot and "takes" away from the transaction a sum of money, it is that sum that controls, and if less than 950 dollars, the crime is a misdemeanor shoplift.  Here, by completing the transaction, Pak's intent ceased to be the relevant consideration, replaced by the sum actually received.   

Unfortunately (but not fatal) for Pak was that she did not present any evidence at the hearing that she received less than 950 dollars.  Her attorney represented to the court that the DA had shown him the receipts and they totaled less than 950 dollars, a statement the DA did not contest.  But the panel finds such representations will not suffice.  So it affirms the denial, but gives Pak another chance to go back to the trial court and this time show the court proof of the amount she received.  

P v. Davis (3rd Dist) Diverting Uncaptured Water Flowing Underground Is Not Theft.

Before we look at the facts of this case, I must say that Davis' appellate attorney and the Third District panel (and its clerks) deserve an A+ for their work on this case.  While it involves a mere misdemeanor, the depth of judicial analysis and client advocacy here are impressive.

Davis owned some land upon which existed a marijuana field.  The marijuana was being grown in accordance with our state's medical marijuana laws, but there was an issue with how the plants were being watered.  Land adjacent to Davis' was owned by a railroad.  Underground of the railroad's land flowed water.  This underground stream was being diverted to Davis' land to water the marijuana.

For this subterranean riparian diversion, Davis was convicted of petty theft of the State's water, PC 488.  Davis appealed.

The Third District Reverses.

The threshold issue here is whether the water at issue was "personal property" as only personal property may be the subject of larceny.  After an impressive review of the historical underpinnings of the common law of property, the panel concludes that the water at issue was not personal property of the State.  Before water is legally captured and contained it belongs to no one (or everyone), despite the State's authority to regulate people's behavior relative to said water.  Naturally flowing water does not, prior to legal capture and containment, have an owner.  

The State's subsequent argument is that the water at issue comprised a real property interest and that in diverting the water, Davis stole a real property interest from the railroad via PC 495.

Another very interesting history-based review of real property law follows with the panel finding that while crops, minerals, and oil constitute real property interests whose removal constitutes theft of a real property interest under 495, water does not.

The law geek inside me is sad that I do not have sufficient time to spend analyzing this opinion as it brought back memories of my 1L year in law school reading about captured fox and other seemingly anachronistic events provided to illustrate the reasoning behind the common law of property.  That said, I am left with much admiration for Davis' appellate lawyer and the Third District panel for their work product on this case.  

P v. Blackwell (1st Dist, Div.5) & P v. Bell (2nd Dist, Div.8): Elected California Judiciary Says "No Thanks" to U.S. Supreme Court's Guidance on Juvenile Sentencing

In years recent, the United States Supreme Court has issued opinions holding specific criminal punishments constitute cruel and unusual punishment when applied to children.  In Roper v. Simmons, the Supreme Court held it unconstitutional to execute someone for a crime they committed as a child.  Following Simmons, the Supreme Court, in Miller v. Alabama, declared mandatory "life without parole" (LWOP) sentences unconstitutional when applied to juvenile offenders.  Finally in Montgomery v. Louisiana, the Supreme Court held that Miller to apply retroactively to juvenile offenders previously sentenced under mandatory LWOP schemes.  

Importantly, Miller did not hold that all LWOP sentences for juveniles were unconstitutional, only that mandatory LWOP sentencing schemes were unconstitutional.  Miller required that before an LWOP sentence could be imposed upon a child offender, the sentencing court must consider the child's age, background and chances at rehabilitation.  

IMEO, Miller and Montgomery are unlikely to have much effect in courts with elected judges.  Rather than affecting any real change, these decisions simply impose upon such courts a requirement that before they impose LWOP sentences on juveniles, they recite some standard language about how they considered certain facts before arriving at a determination that LWOP was the proper sentence.  Despite Justice Anthony Kennedy's warning that LWOP sentences for juveniles should be a rare occurrence, the reality will likely prove otherwise.

Here Blackwell was sentenced to LWOP for a crime he commited when he was 17.  Due to Montgomery, Blackwell now returns to the trial court for reconsideration.  The trial court, after reciting the necessary language, again imposes LWOP and the First District affirms.

Bell was sentenced to 43 years to life for crimes he committed when he was 14.  He argues that such a sentence is cruel and unusual and the functional equivalent of LWOP.  The Second District affirms, finding a shot at parole when Bell turns 57 is not the same as LWOP and is neither cruel nor unusual.

Despite Justice Kennedy's admonition, I am willing to bet that California's elected judiciary will find that "rare" means "more than 70 percent".

P v. Hallam (2nd Dist, Div.1) Computer Store's Employee Bathroom Is a "Commercial Establishment" Under PC 459.5

In 2011, Mr. Hallam walked into a computer store.  With permission, he used the employee bathroom.  Hallam then walked out the back door of the store only to climb back in through the same bathroom's open window, whereupon he stole a 350 dollar air compressor.

For this he was convicted of felony second-degree burglary and sentenced to two years in the State's crowbar motel.  In 2015, Hallam filed a petition pursuant to PC 1170.18 to reduce his felony burglary to a misdemeanor shoplift.  Under the following reasoning, the trial court denied Hallam's petition.

 [T]he statute [459.5] “anticipates” entry into an area of a commercial establishment to which the public has access and where merchandise is sold. Because [Hallam] did not enter the store through the front door and he took an item from the employee area . . . [his] offense did not meet the criteria for shoplifting under section 459.5.

Hallam appealed.  

The Second District reverses.

The issue is one of statutory interpretation, namely Penal Code section 459.5.

(1) entry into a commercial establishment, (2) while the establishment is open during regular business hours, and (3) with intent to commit larceny of property valued at $950 or less.

Clearly the computer store was a commercial establishment.  The time was around eleven in the morning and there was no dispute the computer store was open for business.  Hallam intended to make off with the air compressor, which was worth 350 dollars.  Textually there is no reason Hallam's crime is not a misdemeanor shoplift.  

But alas there is the "additional burglary" theory espoused in People v. Garcia, 62 Cal. 4th 1116.  In Garcia, the California Supreme Court stated that entrance into a room within a larger structure may constitute a separate burglary if there is a "separate and objectionably reasonable expectation of protection from intrusion relative to the larger structure".   Such an expectation may be evinced by the smaller room or area being owned, leased, or occupied by a distinct entity or by the area being locked (such as the storage area in P v. Stylz)

Since the employee bathroom in this computer store was obviously open to customers (Hallam had permission), there was no such expectation of protection.   

As a consequence, Hallam gets his misdemeanor.  

In re Gabriel T. (5th Dist) 30 Day "Flash Incarceration" Provision For Juvenile Is Unlawful.

Master Gabriel was adjudicated a delinquent ward of the juvenile court.  He was ordered to complete a 12 month "Correctional Academy" program.  The program was to consist of a 6 month stint where he would be confined within the program's facility followed by 6 months of "aftercare" where he would live with his family under the supervision and rules of the program.  The juvenile court imposed an additional term authorizing the probation office to reconfine Gabriel to the program's facility for 30 days should it find Gabriel had violated the rules of his aftercare.  Gabriel appealed.

The Fifth District reverses.

Under California law, removing a kid from his home requires compliance with the strict requirements contained within the Welfare & Institutions Code.  It requires the probation office file a petition and that the kid be brought before the court within 48 hours of his removal and given an opportunity to dispute the need for his removal.

As this court's order allowed the probation office to remove Gabriel from his home for 30 days without the concomitant requirements of notice and the opportunity to be heard, it is unlawful.  

Penal Code Section 1170.18 Amended to Extend Proposition 47 Petition Deadline to 2022.

In November 2014, California voters enacted Proposition 47, an initiative that reduced certain felony offenses to misdemeanors and provided a process whereby people previously convicted of such felonies could return to court and petition to have their felony convictions reduced to misdemeanors, provided they did so within three years (making November 4, 2017, the cutoff).

Due to the passage of AB2765 on September 28, 2016, the cutoff is now extended until November 4, 2022.

P v. Stamps (1st Dist, Div.4) Expert Testimony Identifying Pills as Narcotics Based Upon a Web Site Was Inadmissible Hearsay

In  2012, the police searched Ms. Stamps' car and found the following: [1] a crystal solid suspected to be methamphetamine, [2] a powder suspected to be cocaine, [3] two yellow pills with "V" on one side and "Watson" on the other, [4] six white pills with "Watson" on one side and "853" on the other, [5] one yellow pill with "853", and [6] one white pill with "Watson 953".

Stamps was charged with possession of methamphetamine, possession of cocaine, possession of oxycodone, and possession of dihydrocodeinone.  The star witness at trial was a state criminalist.  She testified she chemically analyzed the crystals and powder with results confirming the crystals contained methamphetamine and the powder contained cocaine.  So far, so good.  Then she testified that to identify the chemical content of the pills, she went to a website called "Ident-a-drug" and visually compared the pictures of pills on the website with the pills found in Stamps' car.  Because Stamps' pills looked like the oxycodone and dihydrocodeinone pills on the website, she testified Stamps' pills contained oxycodone and dihydrocodeinone.  The jury convicted Stamps on all charges and she appealed.

The First District reverses the oxycodone and dihydrocodeinone, but finds that a retrial would not violate the Constitutional proscription against double jeopardy.

The portion of the opinion reversing the pill convictions contains a solid analysis.  The double jeopardy portion has a problem (as we'll see).

The criminalist's pill testimony gives rise to numerous legal issues, including hearsay, the Kelly/Frye foundational issue of whether visual id via website is a generally accepted method of determining the chemical composition of a pill, and when information displayed by a computer is testimonial.  Admirably the panel limits its analysis to the hearsay issue and leaves the remaining issues for another day.

The panel finds the hearsay issue is controlled by the California Supreme Court's recent decision in P v. Sanchez.  Prior to Sanchez, when an expert witness testified about out-of-court statements upon which she relied in forming her opinions, those statements were deemed "non hearsay" because they were not being offered for their truth, only to explain the expert's opinion.  Such testimony would often occur when a police officer provided expert testimony that a defendant was a gang member.  It would go something like this.

Q:  Officer do you have an opinion on whether Mr. Smith is a member of the Aryan Brotherhood?
A:  Yes.
Q: Upon what facts do you base your opinion?
A:  In 1994, Mr. Smith was involved in a prison riot started by the Aryan Brotherhood.  In 1996, he was arrested for driving without a license and there were four other members of the Aryan Brotherhood riding in his car.  In 2000, he was arrested for a bar fight between the Aryan Brotherhood and the Hell's Angels.  Also, I'm told he has numerous tattoos on his body associated with the Brotherhood.
Q:  So based upon Mr. Smith rioting with the Aryan Brotherhood, fighting on behalf of the Brotherhood against their rival the Hell's Angels, having Aryan Brotherhood tattoos, and traveling with other Brotherhood members, what is your opinion as to whether Mr. Smith is a member of the Aryan Brotherhood?
A:  He is a member.

Often, the testifying police officer had no personal knowledge of the facts to which she testified.  She was not present at the prison riot, the bar fight, or the traffic stop.  She may not even have personally observed Smith's tattoos.  Often, her testimony was merely the recitation of events about which she had read in police reports and other government documents.  Prior to Sanchez, such statements were nevertheless admissible under the legal theory that they were not being offered for their truth (whether Smith actually rioted, was arrested with other Brotherhood members, had gang tattoos, etc.) but only to explain the police officer's opinion.

Sanchez changed that and you can probably see why.  Such testimony is irrelevant if not true.  Unless you first assert, "Smith actually did these things", the police officer's expert opinion makes no sense.  It perhaps only makes sense to lawyers (a sure warning sign) to say, "these events may or may not have happened and you're not to consider whether they did because the only evidence of these events is not offered for the truth, but you may find Smith guilty of a gang crime based on the officer's opinion despite such opinion being entirely dependent upon the truth of the events, of which there has been no evidence introduced".

Wisely, the California Supreme Court decided that this theory was excerebrose and held that such case-specific testimony is really being offered for its truth and therefore is subject to the evidential rules concerning hearsay.

With this background, the panel in our case determines that the information from the "Ident-a-drug" website was hearsay.  And as there was no applicable exception to the general rule that hearsay is inadmissible, it was error to allow the criminalist to testify to the composition of Stamps' pills based upon the website information.  The panel then finds that the record, stripped of the inadmissible website evidence, contains insufficient evidence to support a conviction.  So it reverses Stamps' pill convictions.

Now the bad.  Following the reversal the question arises of whether it would violate the prohibition against double jeopardy to give the State another crack (pun intended) at convicting Stamps.  The rule is found in the U.S,. Supreme Court opinion in Lockhart v. Nelson.  If the total evidence admitted at trial, admissible and inadmissible, is sufficient to support the verdict, retrial is permitted.

Here, the panel's reasoning in part 3 of section A, appears irreconcilable with its conclusion in section B.  In section A, it states:

 [T]he Ident-A-Drug testimony was the only evidence that the pills actually contained the controlled substances (italics added)

Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation.”(citation omitted). 

Moreover, “hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules . . . .” (citation omitted).  

So, according to the panel, the sole evidence that the pills were illegal was a website.  Also according to the panel, websites are not inherently accurate nor subject to independent verification, making them adequate for almost anything.

Except a finding of truth beyond a reasonable doubt.  Yes, after writing the above, the panel remands for a retrial, concluding,

Acceptance by the jurors of the veracity of the Ident-ADrug results was not so misguided as to render the guilty verdicts among those that no “rational fact finder” could render. 

Does this mean this panel would also conclude that a "rational factfinder" could return a guilty verdict against Hillary Clinton for the murder of Vince Foster if a police officer took the stand and testified that she read from numerous websites that Clinton's fingerprints and DNA were found on the gun that killed Foster?

P v. Sauceda (5th Dist.) Vehicle Code 10851 Conviction Ineligible for Penal Code 1170.18 Relief

2006, Mr. Sauceda was convicted of violating California Vehicle Code Section 10851 and sentenced to prison.  Following the 2014 passage of Proposition 47, Sauceda petitioned the trial court to reduce his 10851 conviction to a misdemeanor, arguing that, if committed today, his crime would have necessarily been a misdemeanor via PC 490.2.  The trial court denied his petition and he appealed.

The Fifth District affirms.

As in many similar opinions, the result is defensible but not the analysis.  Although avoided, the real issue is the intersection of VC 10851, PC 490.2, and PC 487(d)(1).  Vehicle Code section 10851, the statute of conviction, criminalizes "taking or driving" someone else's vehicle, with the intent to either temporarily or permanently deprive the owner of possession.  Penal Code section 487(d)(1) defines a form of grand theft as taking someone else's car with the intent to permanently deprive the owner of possession.  Penal Code section 490.2 (added via 2014's Proposition 47) makes theft of "any property" a misdemeanor if the value of the property is 950 dollars or less.  

This case could have wisely been decided on the basis that the facts of Sauceda's conviction were not within the record.  For reasons indiscernible, the panel unnecessarily extends its analysis and in doing so demonstrates its ineptitude.  

Because the factual basis of Sauceda's conviction are not within the record, two scenarios are possible.  First, Sauceda drove the car, without the owner's permission, with an intent to temporarily deprive the owner of her interest (read, "joy riding").  The alternative scenario is that Sauceda drove, or took, the car with the intent to permanently deprive the owner of her interest (read "stole the car").  

If the former scenario is true, the issue is whether a necessarily lesser included offenses may be punished more severely than the greater offense.  Had Sauceda taken the car with an intent to permanently deprive the owner of her interest, this would have been a "theft", arguably falling within the more specific statute of PC 487(d)(1) which is subsumed by PC 490.2 when the car is a hoopty (worth less than 950 bucks).  On the other hand, had Sauceda been joy riding, such a crime would be a necessarily lesser included of PC 487(d)(1), creating the issue of whether a necessarily lesser included crime may be punished more severely than its greater.  

Avoiding both of these issues, the panel here phrases the issue as whether Proposition 47 sought to modify VC 10851, an inadequately veiled example of ignoratio elenchi.  The answer to this question can only be "no", as it textually did not modify 10851.  However such framing does nothing to address the actual legal issues at play.

A more adroit panel would have simply affirmed the denial because the appellate record did not specify a factual basis upon which the trial court could have been said to have erred (value of the car; whether it was a theft or joyride).  Instead it issues a misguided opinion that leads any learned reader to question its competence.  

P v. Huerta (4th Dist, Div.2) Liberal Pleading Amendment Rule Applies to PC 1170.18; Mandatory Charging Language in PC 459.5 Requires Affirmance

In 2009, Ms. Huerta and a companion walked into a Sears department store and tried to steal several bottles of perfume.  A store detective caught them as they tried to leave the store.  Huerta had 463 dollars of perfume in her bag and her companion had 174.50 dollars worth in her bag.

The State charged Huerta with, among other crimes, second degree felony burglary.  Huerta pleaded to the felony burglary charge and received 16 months in the state prison.

In 2015, Huerta returned to the trial court and filed a petition under PC 1170.18 to reduce her 2009 burglary conviction to a misdemeanor.  In the petition, Huerta's lawyer claimed that the burglary involved property worth less than 950 dollars.  The State responded only that Huerta had the burden to prove her eligibility.  The trial court set the matter for a hearing.

At the hearing, Huerta's lawyer said the perfumes Huerta took were worth 463 dollars and those her companion took were worth 174.50 dollars.  The State did not object to these amounts but argued that Huerta was not eligible for relief because she went into Sears with an accomplice.  This fact, the State argued, provided proof of an uncharged conspiracy.  So since Huerta went into the store to commit a conspiracy, her crime did not fall under the PC 459.5 definition of shoplifting.  The trial court granted the petition and reduced Huerta's conviction to a misdemeanor.  The State's Attorneys (led by their chief job-holder Ms. Harris) , having not yet exhausted their zeal for gormless resistance to the clear will of their client, appealed.

The Fourth District affirms.

The State's first argument is that the trial court erred when it did not summarily dismiss Huerta's petition upon receipt.  I'm sure the attorney for the State thought this a clever argument since it was the Second Division of the Fourth District that decided P v. Perkins, which held a petitioner had the burden to include some form of evidence with her pleading.  The panel properly slaps down this casuistry.  Although unmentioned, Perkins was decided on January of 2016, while Huerta filed her petition in April of 2015.  As the text of 1170.18 gives no guidance on what procedures are appropriate, this argument evinces this particular State attorney to be wont to make arguments I can only describe as (to quote "Time Bandits") "pure concentrated evil".  

The panel, for good measure, goes on to demonstrate that even if the State attorney's malefic argument were worthy of consideration, (s)he still loses.  As our courts are to liberally allow pleadings to be amended when there is a "reasonable possibility" the defect can be cured, the panel states that had the trial court summarily denied Huerta's petition for the reasons asserted by the State, such a denial would have been an abuse of discretion.  

Apparently incapable of embarrassment, the State has another argument.  Since Huerta went into Sears to steal perfumes with a companion, her intent upon entry was not just to commit larceny, but to also commit the crime of conspiracy.  The panel disposes of this argument quickly.  First, Huerta's conviction was for entering Sears with an intent to steal perfume.  The issue in a 1170.18 petition is whether the crime of conviction would have been a misdemeanor following the November 4, 2014, amendments to the Penal Code.  And had Huerta walked into Sears to steal 473 dollars of perfumes on November 5, 2014, her crime would have been a misdemeanor under PC 459.5.  

Furthermore, even if indulged, the argument that Huerta is ineligible for relief because she entered Sears with an intent to commit the crime of conspiracy fails upon the application of a mere scintilla of logic.  Conspiracy, the crime of agreement, requires an intent to commit a target crime.  And here the target crime could only have been the theft of perfume.  So the argument collapses upon itself; even if Huerta was guilty of walking into Sears with the intent to commit the crime of conspiracy, she necessarily was also guilty of walking into Sears with the intent to commit theft under 950 dollars.  

According to the plain language of PC 459.5, whenever a crime can be charged as shoplifting, it shall be charged as shoplifting.  

[note to the panel in P v. Varner:  (blog post here, opinion here) Look at how Huerta's petition is affirmed even though her crime of conviction, PC 459, doesn't appear within PC 1170.18]