P v. Aguilera (2nd Dist., Div.4): Taking Your Wife's Cellphone (Even if You Bought it and Pay the Bill) Can Be a PC 211

As a hook for this post, I begin with some hypothetical fact patterns.

[1] A married heterosexual couple goes out to dinner.  Wife forgets her cellphone at home.  During dinner the couple gets into a heated argument.  Wife tells husband to call her a cab to go home.  Husband refuses.  Wife grabs her husband's arm and reaches into his jacket pocket to get the phone.  As she is leaving with the phone to go outside and call a cab, husband grabs her arm in an attempt to prevent her from leaving with his phone.  Wife struggles free, goes outside, and calls a cab.  Husband is currently unemployed.  Wife purchased both their cell phones and pays the monthly bill.
    Q:  Can Wife be convicted of a strong armed robbery and sent to prison for five years?

[2]  A married same-sex couple, Chris and Pat, purchase two cars after their wedding, a Honda that Chris mostly uses and a Volvo that Pat mostly uses.  Pat finds out Chris is a serial cheater and has been lying to Pat for the last four years.  Pat decides to leave, for good.  Pat packs up the Volvo and leaves for Colorado to start a new life, having no intent to ever return.
    Q:  Can Pat be convicted for VC 10851 (aka GTA) and jailed for three years?

[3]  A jilted spouse discovers her husband has been cheating on her.  She had recently given husband three new Armani suits for him as a birthday present, purchased with community funds.  Out of spite, she cuts up the suits and leaves them on the front lawn.
    Q:  Can jilted spouse be convicted for felony vandalism and jailed for three years?

According to California's appellate courts, the answers to [1], [2], and [3] are all "yes".

These hypothetical fact patterns, like the opinion here, concern theft within the context of community property, property for which two people each share an undivided half interest.  

Mr. Aguilera got into it with his wife after she obtained a restraining order against him.  He chased her down and demanded her phone and purse, eventually breaking the window of her car, choking her, and grabbing her phone.  Aguilera then took off running with the phone, which he had recently purchased for his wife, and for which he paid the bill.  He was found a few blocks away, the police arrested him, and his wife got the phone back.  The State charged Aguilera with robbery, and a jury convicted. A Second District panel affirms the conviction.

The first issue to be addressed is how can Aguilera steal his own property?  The court says that because the property is only really 1/2 his (and 1/2 his wife's), it is possible for Aguilera to steal his wife's half of the phone.  Okay, but how do you determine whether in taking the phone for the short time he did, he was denying his wife her 1/2 ownership interest in the phone or just asserting his legal, 1/2 ownership interest in the phone?  It is community property after all, each spouses interest is equal.  If he took the phone with the intent to break it or keep it forever, it would be more clear (see hypo [2] above), but doesn't Aguilera, as 1/2 owner have a right to 1/2 the economic value of the phone (which is its use as a phone)?  This the panel doesn't ask, or hence, answer this question.

Aguilera then argues that he cannot be convicted of robbery for the phone because robbery is a crime of theft and theft requires an intent to permanently deprive the owner of the property. Aguilar says the phone is community property and he did not have an intent to permanently deprive his wife of her ownership interest in the phone, only the intent to take it from her for a short period of time (perhaps until he could convince her to not use it to call the police on him).  The panel holds that sometimes an intent to "temporarily deprive" satisfies the "permanently deprive" requirement.  

This unworkable holding has its roots in an excerebrose opinion by the California Supreme Court in which Justice Chin created his own statutory cannon, non secundum litteram, to hold that the word "permanently" also meant "temporarily" (I'm not kidding) to the consequence that a defendant's out-of-state prior constituted a strike.  P v. Avery 27 Cal. 4th 49.   In doing so, the good justice was adamant that words in a statute should not be interpreted "literally" (again, not kidding).  "Literally" means "in a manner that accords with the usual or basic sense of the words, without metaphor or allegory".  So, apparently utilizing some other undisclosed literary device, Avery held that theft, which requires "an intent to permanently deprive the owner of her property" can be committed by someone who only harbors an intent to "temporarily deprive the owner of her property" if that amounts to an "unreasonable amount of time" that "deprives the owner of a major portion of its value or enjoyment".

Using this reasoning, the panel affirms the conviction.  But again logic again leads the reader to note that wife can only be deprived of her interest, which is 1/2.  So Aguilar must have had the intent to keep the phone for some unreasonable amount of time that would deprive wife of a major portion of her interest in the phone's value.  So would that be 1/4 of the total?

As I asserted above, this holding is unworkable in practice.  If I hog the remote continually, do I deprive my wife a major portion of the value of our TV (community property)?  If the TV is a really nice one, is it grand theft?

The more restrained and workable rule was quoted, but disregarded.

     [The vehicle] is indivisible and its use by one spouse necessarily denies its use to the other. The decision to temporarily take sole possession of a community property vehicle may be based on agreement, misunderstanding or a peevish desire to deny temporarily, for whatever reason, use of the vehicle to the other. Still, in taking the vehicle, even with the intent to temporarily deprive a spouse of its use, the actor does not exceed his or her property right and the problem is properly viewed as a domestic and not a criminal one.(Llamas, supra, 51 Cal.App.4th at p. 1739.)

None of this is to say Aguilera did not commit serious crimes against his wife for which he could rightly have been convicted.  But in eschewing all pragmatism to affirm a robbery conviction, this panel, IMEO, erred.

P v. Ewing (3rd. Dist.): Gang Allegations Affirmed; Evidence Satisfies P v. Prunty and P v. Velasco Requirements.

Mr. Ewing, one Mr. Bergara, and two others set out to rip off a guy who was trying to buy 1200 dollars worth of OxyContin.  The quartet planned to meet up with the victim, take his 1200 dollars and then leave without delivering the goods.  Initially things went according to plan, but then, after taking the victim's 1200 dollars, someone (Ewing or Bergara) pulled a gun and shot the victim.

Ewing was eventually convicted of, among other crimes, shooting into an inhabited vehicle, PC 246.  The jury found true a gang enhancement, PC 186.22(b)(4) alleged as to the 246.  The bone and sinew of Ewing's appeal is that the evidence was insufficient to support the gang enhancement.

A Third District panel affirms.

The gang enhancement requires the following.

person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members

And a criminal street gang is defined as follows.

any ‘ongoing organization, association, or group of three or more persons’ that shares a common name or common identifying symbol; that has as one of its ‘primary activities’ the commission of certain enumerated offenses; and ‘whose members individually or collectively’ have committed or attempted to commit certain predicate offenses

It is no surprise that the above language has generated a significant volume of appellate opinions.  One such opinion was People v. Prunty, where the Supreme Court of California had occasion to interpret the criminal street gang definition within the context of umbrella gangs and their sects.

Certain California prison gangs are comprised of a small number of incarcerated individuals who are segregated from the general prison population.  These individuals are said to exert control over, and receive loyalty and tithing from, a much larger group comprised of incarcerated individuals in the general prison population as well as recently released persons on parole.  In addition to these more formal groups, exist groups of usually younger people who engage in criminal activity.  These last groups are highly local in name and activity, having names that incorporate specific street names or neighborhoods.

These local groups often identify with, and use the symbols of, the more formal prison-based gangs.  This has led to the State grouping all of the above groups under one umbrella, identifying sometimes distinct, isolated, local groups as belonging to a singular gang.  In People v. Prunty, the California Supreme Court faced a case where the defendant belonged to local gang X.  To prove that gang X met the legal definition of a criminal street gang, the prosecutor used the prior convictions of members of local gang Y.  The prosecutor did this under the theory that because both local X and local Y identified with the same prison gang, they were all members of the same gang.  The California Supreme Court reversed the conviction in Prunty, holding that, to gain a conviction under this "umbrella" theory, the State was required to show some collaboration, association, or contact, between the local subset(s) and, if necessary, between the local subset(s) and the umbrella organization.

In this case, there was evidence that the umbrella prison gang sent a group, including Bergara, to the Redding area in order to establish a local affiliate gang.  Since the prior convictions the State used to establish the organization was a criminal street gang were all of this "Redding seed group", deployed to Redding by the prison gang, there was no Prunty issue in the State's proof.

As an aside, the facts in this case demonstrate the refinement with which the prison gangs have drafted their rules in order to insure a steady flow of young people to do their bidding.  By encouraging those on the outside to advertise their criminal behavior and gang affiliations, the probability of those persons being caught and prosecuted rises sharply.  And once these young people are in prison, the prison gang has greater coercive power over them.  By encouraging or requiring crude prison tattoos which cannot be concealed (face, neck, head, hands), any future integration into larger society by members is improbable, meaning they will continue to be reliant upon the gang for social and financial support.  And like everything, this support comes with a price.  

P v. Perkins (4th Dist., Div.2): A PC1170.18 Petition Must Include Information or Evidence Establishing the Defendant's Eligibility for Relief

It has been educational to observe the judicial responses to the passage of Proposition 47.  Courts were suddenly faced with, in part, new forms of relief for which there were no existing procedures.  Specifically, Proposition 47 added section 1170.18 to the California Penal Code, which allowed certain defendants to petition the Superior Courts for reductions of their convictions and/or sentences.

Some Superior Courts, such as in Riverside County, created local judicial forms for 1170.18 petitions.  Because the petitions were likely to come from unrepresented defendants, creating these forms made it easier for non-lawyers to file their petitions and avoided burdening the courts' clerical staffs with floods of handwritten claims for relief.

But, the first draft of anything is unlikely to be perfect.  That is, in part, what this case is about.

Mr. Perkins was convicted, in addition to other crimes, of one count of possession of stolen property, PC 496(a) and three counts of grand theft, 487(d)(2).  After Perkins was sentenced, Proposition 47 passed in the November 2014 election.  Perkins filed a petition, using the judicial form adopted by the Riverside Superior Court.  He wanted the court to reduce his three 487(d)(2) convictions and his 496(a) conviction.  However the Riverside judicial form did not contain an option for 487 reductions.  So Perkins checked the box for his 496(a) conviction and made a handwritten request for 487 reductions.

The Riverside Superior Court denied Perkins' petition sans any evidentiary hearing and an appeal followed.

The Fourth District affirms the denial, but does so without prejudice, which means Perkins can refile his petitions with the guidance provided in the opinion (and surely a since-corrected judicial form).  The opinion accurately describes the Proposition 47-created challenges faced by both the Superior Courts and self-represented defendants.  More importantly, the opinion clarifies for defendants what they must provide in their petitions to avoid a summary denial.

Specifically, defendants have the burden to establish they are eligible for relief under 1170.18.  This requires the defendant to establish, in the case of 496(a) and 487 cases, that the value of the property at issue is 950 dollars or less.  So along with the judicial form, a defendant has the burden to attach some evidence, declaration, or citation to the record, that tells the court what is the property at issue and what is the value of the property.  Since Perkins did not do this, the denial is affirmed.  But since nobody told Perkins he was required to do so, he can have another shot.

Hopefully Superior Courts will change their judicial forms to inform defendants what they must provide to establish their eligibility.

California Supreme Court Grants Review in P v. Cuen & P v. Romanowski .

January 20, 2016, the California Supreme Court granted review in Cuen and Romanowski to resolve a split over whether certain grand thefts pursuant to Penal Code section 484e(d) are subsumed by Penal Code section 490.2.

You can follow the cases here.

P v. Ramos (4th Dist., Div.3): Amendment to HS11352 Requires Retrial.

Ms. Ramos was a passenger in a motorcar that was stopped by the police.  Her purse was found to contain heroin, methamphetamine, and a gun.  A jury convicted her of possession of methamphetamine for sale and transportation of heroin, Health and Safety Code section 11352.

At the time of her conviction, 11352, transportation of narcotics (a more severe crime than possession), only required that you possessed some heroin and then moved it, no matter how far.  It was an embarrassingly silly statute, made even more so by California's Supreme Court's statutory interpretation.  Any movement would suffice.  So, moving the heroin from your pocket to your spoon? That's a transportation.  Having the heroin in your pocket and walking down your hallway to the bathroom?  That's a transportation.  The earth's continual rotation?  Well, no prosecutor was ever that clever (or imbecilic).

So before Ramos' conviction was final, that gaggle of half-anonymous asses, aka the California state legislature, had a moment of clarity and changed 11352 to require the transportation be for purposes of sale.  So now you could walk down your own hallway with heroin in your pocket without being convicted of the severe felony of transportation (unless you intended to sell it to your roommate at the end of the hall).

The problem is that there was no evidence introduced at Ramos' trial that the heroin was possessed for sale.  Which is logical since, at the time, the prosecutor didn't have to prove it was possessed for sale to get a conviction.  So while everyone agrees the statutory changes apply to Ramos, Ramos asserts her transportation conviction must be reversed and retrial barred, while the State asserts that the conviction should be affirmed under the harmless error standard.

The panel reverses the transportation conviction and remands the matter for further proceedings (retrial).  The State's argument that harmless error applies is properly rejected; Ramos has the right to have the missing element, possession for sale, determined by a jury, not an appellate panel.  Furthermore because the State had no need to introduce evidence of sales at trial (the transportation charge not requiring it at the time), remand is required to provide them the opportunity to do so.

P v. Trujillo (4th Dist., Div.1): PC 952's Notice Requirement for Pleadings Incorporates the Preliminary Examination Transcript

In part, these defendants were charged, via a complaint, with committing crimes related to low balling their employees' wages on insurance forms in order to reduce their workers' compensation insurance.  The complaint recited the charges in the following form.

"[D]efendants[] SABAS TRUJILLO, LUCIA TRUJILLO and RICK TRUJILLO[] committed a violation of California Insurance Code section 11760, subdivision (a), a felony, in that on or about June 1, 2005 through and including June 1, 2009, . . . they did wilfully and unlawfully make and cause to be made a knowingly false and fraudulent statement, orally and in writing, of a fact material to the determination of the premium, rate, and cost of a policy of workers' compensation insurance, for the purpose of reducing the premium, rate, and cost of the insurance. (California Insurance Company by Prestige Stripping Services, Inc.)" 

Such form, limited to a generic paraphrasing of statutory text, is commonplace.  But in some instances, like here, it doesn't really put the accused on useful notice of what they are accused.  All this tells Trujillo is that the State is accusing her of, on one unspecified day of 1462 possible, making a false statement, in writing or maybe orally, to the insurance company.

So Trujillo demurs to the complaint based on lack of "notice" required by PC 952.  The trial judge ordered the State to narrow down the alleged dates and file an amended complaint.  In an impressive move that reinforces the need to "be careful for what you wish", the wonderfully cheeky deputy DA provided a spreadsheet with over a thousand alleged instances of false statements during the four year period, accompanied by a yet-to-be-filed amended complaint with 1,104 counts.  The deputy DA, admirably, refused to file the amended complaint.  The judge then granted the demurrer.

The State appealed and a Fourth District panel reverses, ordering the complaint be reinstated.  The holding that the complaint was sufficient is based upon the principle that the "notice" requirement of PC 952 takes into consideration the transcript of the preliminary hearing.  Since a complaint is filed before a preliminary hearing occurs, a 952 demurrer is premature in this case.  The opinion points out that it is really the preliminary hearing that provides the functionally useful notice to a defendant as to the specifics of the allegations (in practice the defendant usually finds out well before the preliminary hearing because the State turns over the crime report(s)).  It is an admirably concise and restrained opinion.

As an aside, the next time I hear that Wall Street rogues are not being prosecuted due to the political difficulty of doing so, I'm going to refer the speaker to the Riverside County DA's Economic Crimes Division.  Something tells me the prosecutor in this case who showed up with the 1,104 count complaint, yet refused to file it, isn't easily intimidated.  

P v. Johnson (Cal. Supreme Ct.): Defendant Asks for the Death Penalty, Gets It.

This is a mandatory appeal from a sentence of death.  A sentence for which Mr. Johnson asked while testifying.

Eighty six pages later, the verdict is affirmed.

P v. Orozco (4th Dist., Div.1): Proposition 47 meets VC 10851 & PC 496d; a Defensible Result from an Indefensible Analysis

Mr. Orozco was caught driving a stolen hoopty (worth around $300).  Orozco said the ubiquitous "unknown male" offered Orozco a ride and Orozco accepted whereupon the helpful no-name took Orozco to the stolen hoopty and Orozco took off in the car.  Orozco pleaded to VC 10851 (taking or driving a stolen car) and PC 469d (possession of a stolen car).

While Orozco was waiting to be sentenced, the voters of California passed Proposition 47.  Orozco petitioned the court to reduce his VC 10851 and PC 496 convictions to misdemeanors pursuant to PC 1170.18.  The trial court denied the petition.  

A panel from the Fourth District affirms the denial.  

This is an irritating opinion.  Not because the result is necessarily wrong, but because the analysis is dead wrong.  Especially irritating is that the opinion prefaces its analysis with a declaration of intent to follow the proper cannon of statutory interpretation, only to immediately abandon the cannon and effectively rewrite PC 1170.18.  

The statute, in pertinent part, is a straightforward two-step.  

A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case 

to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act. (spacing added)

 The first step is to determine whether the conviction at issue is one that would have necessarily been a misdemeanor had it occurred after the passage of Proposition 47.  If the petition passes the first step, then resentencing shall occur in accordance with one of  the enumerated statutes.

For some reason, allegedly learned appellate justices mistake the enumerated resentencing statutes in step two for a list of eligible convictions.  This is plainly wrong.  For one, it is anachronistic.  Penal Code sections 459.5 and 490.2 were added by Proposition 47.  It is impossible for anyone to have convictions for these offenses prior to passage of the Proposition 47.  Second, the resentencing statutes, such as PC 459.5, explicitly subsume prior convictions of other unmentioned statutes.  I will demonstrate.

Take a PC 459 felony conviction from November 1, 2014, where the defendant went into an open 7Eleven and stole a bottle of pop.  This conviction is, without doubt, eligible for PC 1170.18 relief.  However if you follow the panel's analysis, the 7Eleven thief is not eligible.  PC 459 is not mentioned in 1170.18, nor was PC 459 "amended or added" by Proposition 47.  This anomalous result flows from the fact the panel confuses step one with step two.  Certain pre-Prop47 PC 459 convictions are eligible because they would have necessarily been 459.5 convictions post-Prop47.  An eligible 459 conviction would be reduced to a 459.5 and sentenced accordingly.  So too for certain felony thefts that now would be 490.2 convictions.

My philippic finished, the result as to the 10851 makes sense.  One can violate VC 10851 in two ways; take (steal) a car, or drive a stolen car (joyride).  If one "takes" a car, there is a non-specious argument that, if the car is worth less than 950 dollars, the crime is necessarily a misdemeanor because the conviction is required to be under PC490.2.  But here, perhaps poetically, Orozco thought it would mitigate his situation to claim he did not steal the car, rather he only accepted an invitation from an unnamed Samaritan to drive a car that had already been stolen.  His intended self-serving statement ended up anything but.  

The issue of Orozco's 496d is more nuanced.  The issue is whether Proposition 47's amendments to PC 496 have an effect upon 496d and the other possession-of-stolen-property offenses.  Just as PC 459.5 and 490.2, by their plain text, encompass specific, unnamed, pre-Prop 47 convictions, do the amendments to 496 do the same?

But let it be clear, the issue is not whether the statute of the conviction for which 1170.18 relief is being sought is contained within the second, resentencing, clause of 1170.18.  Nor is the issue whether the statute of conviction was added or amended by Proposition 47.  The issue is clear; would the conviction have necessarily been a misdemeanor if committed after Prop47?  If this is true, the resentencing will necessarily be under one of the enumerated statutes, those statutes having been added or amended by Proposition 47.

P v. Vargas (2nd Dist., Div.8): Entering a Check Cashing Store to Cash a Forged Check is a PC 459.5.

I previously commented on P v. Gonzalez, which, IMEO, was incorrectly decided.

Here a panel from the Second District agrees with me.

Ms. Vargas went into a check cashing business and tried to cash a 148 dollar forged check.  She was arrested and pleaded guilty to second degree burglary (aka "commercial burglary").  Following the November, 2014, passage of Proposition 47, Vargas petitioned the court under PC 1170.18 to reduce her conviction to a misdemeanor and resentence her under PC 459.5, shoplifting.  The trial court denied Vargas' petition, stating that "shoplifting" did not include going into a check cashing place to cash a forged check.  Vargas appealed.

A panel from the Second District reverses, disagreeing with the Fourth District's contrary holding in P v. Gonzales.  And for good reason.

The issue is this; had Vargas committed her offense today, would she necessarily be punished as a misdemeanant?  The answer depends on the statutory language of the newly created crime of shoplifting, PC 459.5.

[1]entering a [2]commercial establishment [3]with the intent to commit larceny [4]while that establishment is open [5]during regular business hours, [6]where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). (numerals added)

Vargas can clearly establish [1], [2], [4], [5], and [6], as the panel refuses the State's invitation to rewrite the statute by deleting "commit larceny" and substituting "steal displayed merchandise".  The real issue is [3]; whether cashing a forged check (theft by false pretenses) is larceny.  The state urges the panel to follow the reasoning in Gonzales and hold that because P v. Williams held the robbery element of "felonious taking" was not modified by the subsequent addition of PC 490a (stating "larceny" includes theft by false pretenses), it therefore follows that we can ignore 490a when analyzing PC 459.5.  The panel wisely chooses to base its decision in the text that the voters approved rather than the flimsy legal analogy of Gonzalez.  It is hard to find fault with the panel's deduction.

 Thus, because voters adopted the phrase “intent to commit larceny” in section 459.5, which mirrors the intent element in the general burglary statute (§ 459), and that phrase includes theft by false pretenses, we believe the voters intended section 459.5 to include theft by false pretenses.

Thus the case is remanded to the trial court for a determination whether resentencing Vargas would create an unreasonable risk to the public peace.  My guess is the answer will be "no".    

  

P v. Thurston (1st. Dist., Div.2): "Conviction" in Section 1170.126(e)(3) Includes Juvenile Wardships

Mr. Thurston was sentenced under the old "two strikes plus any felony" scheme to 27 years to life.  The conviction was for VC 2800.2(a), felony evasion, with two prior robbery convictions (two strikes) and two prior prison terms.

After the three strikes scheme was reformed, Thurston petitioned for resentening under Penal Code section 1170.126.  This section, added as part of the 3 strikes reform, makes certain lifers eligible for resentencing under the new scheme.  In order to be eligible, the lifer must not have

 a prior conviction for any offense appearing in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv). (italics added).

Although not alleged in the evasion case, it turns out Thurston had a juvenile wardship disposition based upon a forceable rape charge, a charge appearing in section 1170.12(c)(2)(C)(iv).  Upon this discovery, the issue became whether "conviction" in the disqualification language of 1170.126 includes a juvenile wardship finding.  The trial judge ruled "conviction" included specific juvenile wardships and denied Thurston's petition.  The First District affirms.

This is a question of statutory interpretation.  And this panel from the First District shows themselves either unwilling, or unable, to construct, and ratiocinate within, the accepted rubric of statutory interpretation.

The panel substitutes citations to an unpublished pamphlet by Judge Couzens, a retired superior court judge, in place of a threshold determination of whether the language at issue is ambiguous or not.  This is inexcusable.  Appellate justices are, theoretically, selected (and paid well) for their ability to interpret newly enacted statutes.  Delegating this very important job to a retired trial judge who happens to enjoy commenting on new legislation is disturbing.  Judge Couzens is certainly qualified to comment on legislation and his interpretations are valid, and no doubt helpful to his readers.  However they are not, and should not be treated as, a succedaneum for the cannons of statutory interpretation.

The panel eventually does some work of its own.  They examine the reform scheme's statute on initial sentencing, which explicitly includes juvenile wardships within the category of disqualifying "convictions".  In other words, had Thurston committed his crime after the 3 strikes reforms, he would still legally receive the 27-life sentence.  Therefore it makes no sense that he should now be eligible for a lesser sentence.

Had the panel done their job correctly they would have first examined the word "conviction" within 1170.126 and determined it was susceptible of more than one reasonable meaning.  Such a threshold finding then would have justified examining the various meanings within the larger context of the enacting statute (which the panel did quite well) and choosing the meaning that is more reasonable.

This is not too much to ask.  

P v. Lozano (2nd. Dist., Div.5): Juveniles Sentenced to LWOP Prior to SCOTUS Decision in Miller May Present Post-Conviction Evidence of Rehabilitation at Resentencing.

Ms. Lozano, age 16, lured her 13 year old friend into the woods and murdered her 13 year old friend with two gunshots to the head when the friend refused to hand over her jewelry.  Lozano was  convicted of murder during a robbery and sentenced to life without the possibility of parole (LWOP). This was in 1996 when California courts (understandably) thought the default penalty for juveniles guilty of such murders was LWOP.

Lozano's behavior during her initial years in prison was awful.  She was part of a scheme to smuggle dope into prison for which she was convicted and received an additional six years.  But then Lozano began to mature.  As the panel notes.

Lozano earned her GED and an AA college degree; a laudatory declaration from a former warden of the California Institution for Women; various certificates of completion of vocational courses; participation in numerous self-help programs related to alcohol and substance abuse and coping skills; participation in programs involving the consequences of criminality on victims, participation and leadership in programs relating to juvenile offenders; election to the inmate council that works in conjunction with prison administration; participation in an outreach program to prevent juveniles from participating in crime, including personal communication with some participants; and over 30 laudatory comments from prison staff including descriptions of her transformation from an immature inmate to a person dedicated to helping others avoid the mistakes that lead to her incarceration. 

In 2012, the United States Supreme Court decided in Miller v. Alabama that mandatory LWOP sentences for juvenile crimes violated the Eight Amendment to the U.S. Constitution because such sentences constitute cruel and unusual punishment.  Because, at the time Lozano was sentenced, LWOP sentences were de facto mandatory (the California Supreme Court, following Miller, scrambled to pen an opinion holding California's statutory scheme did not create a presumption of LWOP for juvenile special circumstance murders, past practice having been otherwise), she was entitled to be resentenced.

At her resentencing, Lozano wanted to introduce her record while in prison, the good and the bad.  The trial judge understood he was to sentence Lozano, necessarily making findings of Lozano's likelihood of rehabilitation, upon the facts as they existed in 1996 and excluded all evidence of Lozano's prison record (direct evidence of actual rehabilitation).  The result of this anachronistic drama was that the judge found there was no possibility a 16 year old Lozano could be rehabilitated and he sentenced her again to LWOP.

The Second District reverses and remands for a new sentencing hearing where Lozano will be allowed to present her prison record. 

I do not envy the panel, or the trial judge, in this case.  While logic would dictate Lozano's prison record would be the best evidence as to whether Lozano can be rehabilitated and safely integrated back into society, the U.S. Supreme Court's holding in Miller appears (to me) to suggest that while it is unwise to make the decision of whether a juvenile should ever be eligible for parole at the outset (while the person is still young), it is sometimes okay to do so.  The reasoning behind Miller is that predicting whether an immature human's crimes are a result of transitory immaturity likely to resolve, or the result of irreparable corruption, is unlikely to be reliable at the outset.  But that is when sentencing occurs.

This panel makes the logical (if not legally air-tight) choice and allows the trial judge to reconsider Lozano's likelihood of rehabilitation with the aid of her actual record of rehabilitation.

P v. Arroyo (Cal. Supreme Ct.): Direct Adult Filing of Juveniles May Proceed By Way of Grand Jury Indictment

Master Arroyo was riding in a car that contained gang members and a gun.  The Orange County District Attorney brought Arroyo's case before a grand jury.  The grand jury found probable cause that Arroyo had committed certain offenses and that Arroyo was over 14 at the time.  The OCDA then filed an indictment in the Superior Court.

Arroyo's demurrer was granted and the indictment dismissed, on the grounds the applicable statute, California Welfare and Institutions Code section 707(d)(4), required the DA to proceed by way of an information, which necessitates a preliminary examination, a proceeding that affords the accused greater protections than before a grand jury.  The state appealed and the district appellate court reversed.

Now the California Supreme Court affirms the district court, holding that a juvenile direct-file may be commenced by way of grand jury indictment.  The issue is one of statutory interpretation, specifically the following language.

In any case in which the [state] has filed an accusatory pleading against a minor in a court of criminal jurisdiction pursuant to this subdivision, the case shall then proceed according to the laws applicable to a criminal case. In conjunction with the preliminary hearing as provided in Section 738 of the Penal Code, the magistrate shall make a finding that reasonable cause exists to believe that the minor comes within this subdivision. If reasonable cause is not established, the criminal court shall transfer the case to the juvenile court having jurisdiction over the matter.

The first sentence is consistent with the state being able to proceed by way of an indictment as such a course is in accordance with "the laws applicable to a criminal case".  It is the second sentence that creates the controversy.  It is really just one word, the definite article "the" modifying "preliminary hearing" that creates the issue.  Had the drafters used the indefinite article "a", there would be no issue.  But because a definite article refers to a noun that is identifiable to the listener, it creates an implication the modified noun necessarily exists.  Arroyo uses this angle to argue that the statute requires a preliminary hearing.

The California Supreme Court rejects this interpretation, instead finding the first sentence indicates an intent to allow the state to proceed by any legal method.  It is a reasonable interpretation.  But to be intellectually honest, the alternate interpretation would probably be just as reasonable.

P v. Leon (5th Dist.) Statements Made In Response to Booking Questions About Gang Membership are Not Testimonial

California criminal cases that contain gang enhancements seem to give rise to novel evidentiary issues.  One such issue involves booking questions, questions asked of inmates upon their arrival at jail.  In addition to innocuous biographical questions, inmates are also asked if they have any gang affiliations.  This because California jails segregate gang members into special housing units for reasons of safety and administrative ease.  Suffice to say it would not be wise to place an inmate who belongs to Gang X in a housing unit comprised of inmates from rival Gang Y.

In cases with gang allegations, prosecutors would, at trial, routinely introduce an inmate's response to this booking question to prove the gang allegation.  Recently, the California Supreme Court held that using an inmate's response to the booking question regarding gang affiliation, when the inmate hadn't been advised of his Miranda rights beforehand, violated the Constitution.  People v. Elizalde (2015) 61 Cal.4th 523.  Which seems fair.  Just because you are arrested shouldn't mean you cannot be safely housed at the jail unless you incriminate yourself.

But here the Fifth District panel has occasion to decide an ancillary issue.  Are your codefendants' answers to the booking question about gang affiliation admissible against you, even if the codefendants do not testify at trial?

The panel answers the question "yes".  Finding that the non-testifying codefendants' answers to the booking question are not "testimonial" because the intent of the booking officer was not to preserve evidence for future prosecution, rather just make sure the inmates were safely housed, the panel sees no Constitutional impediment to their admission against the defendant.  So while his own statement that he is a gang member is inadmissible, his codefendants' statements that they are gang members is admissible.

P v. Rangel (4th Dist., Div.2): Excess Custody Credits May Be Applied Against PRCS

Unconstitutional prison overcrowding, taxpayers sick of paying the high price of incarceration, and the trend toward a more libertarian view of narcotics, have resulted in recent changes to the California Codes that allow prisoners to petition for reduced sentences.  Prisoners successful in getting their sentences reduced frequently have custody credits that exceed their reduced sentences.  Understandably, prisoners wish to use these "excess credits" to reduce the time they must spend on parole or community supervision following their releases.

Mr. Rangel is an "excess credit" prisoner.  Rangel was sentenced under the old "two strikes and a felony" law to life in prison for being a felon in possession of a firearm.  After the penal code was changed in 2014, Rangel returned to court and had his sentence reduced from life to nine years.  However at the time he received his reduced sentence of nine years, Rangel had already been in prison for 18 years, meaning he had nine years in "excess credits".  The trial judge credited these excess credits against the mandatory post-release community supervision period of three years, resulting in Rangel being released without any community supervision.

The state petitioned the appellate court for a writ directing the trial judge to go back and order Rangel to complete a three year community supervision period.  A Fourth District panel denies the state's petition.

The issue is one of equal protection; to wit, is there a rational reason to treat those subject to community supervision differently from parolees as regarding excess custody credits.

The California Penal Code specifically allows prisoners to use excess credits to reduce the amount of time they must spend on parole.  However, the code is silent as to community supervision, the post-release program created in 2011 for the purpose of reducing the prison population.  Prior to 2011, every felon released from prison was required to be on parole.  In its effort to reduce the prison population, the state amended the law in 2011 to restrict parole to only the most dangerous offenders.  Those prisoners released from prison for less dangerous offenses were now placed upon "community supervision", a kind of "parole-light" whereby they would be supervised by county probation officers instead of parole officers.  While a parole violation can result in a return to prison, a community supervision violation cannot (the maximum sanction being 180 days in local custody).

In this panel's view, there was really only one motivation behind substituting community supervision for parole for those prisoners deemed less dangerous and that is reducing the prison population (a view I share).  As the terms of community supervision largely mirror those of parole, there is no evidence of an legislative intent to accomplish anything else with this change.  Since the sole motivation was financial, there is no reason to believe the legislature meant to deny prisoners subject to community supervision the benefit of applying their excess credits against their periods of community supervision.

Plus, the panel points out that, from a public safety vantage point, it would make no sense to allow parolees to use excess credits to reduce their parole term and not allow the same for those on community supervision.  The only reasonable disparate treatment would be to not allow the reduction for parolees, since they are the dangerous ones.  If you are going to let the most dangerous prisoners credit their excess time against a post-release supervision period, what reason could there be to deny the same to those prisoners you deem low-risk?

The net effect is that, because Mr. Rangel served nine years more than his eventual sentence, he need not complete three years of community supervision.  And that seems fair.

P v. Perez (4th Dist., Div.1): Promising Not to Charge a Suspect if He Confesses Precludes Use of the Subsequent Confession Against the Suspect

Mr. Perez agreed to help one Mr. Jasso commit a robbery.  Jasso hailed a taxi and Perez followed the taxi in his Nissan.  Jasso then robbed the taxi driver of 200 dollars; he also shot and killed him.  Perez provided the getaway and disposed of the murder gun, receiving 100 dollars for his participation.

Police eventually learned of Perez's role and took him in for questioning.  After Perez had steadfastly denied any involvement, the policeman told Perez that if he was truthful and honest, "we are not gonna charge you with anything", adding that Perez had the policeman's "word" that "you'll have your life, maybe you'll go into the Marines".  Perez then confessed.

At trial, the judge denied Perez's motion to suppress his confession.  Perez was convicted of murder.

The Fourth District reverses.  This is not a surprise.  The United States Supreme Court has held that when the motivating factor of a confession is an express promise of leniency or advantage, the confession is involuntary and must be suppressed.  Here the trial judge denied the motion based on statements the police made after Perez had confessed.  You read that right.  The Hon. Richard Erwood ruled that Perez was motivated to confess by statements the police made after Perez confessed.  Such an excerebrose ruling can only be the result of judicial sloth, prejudicial bias, or a cynical and calculated decision to eschew clearly established law with an eye towards reelection.

Clearly the panel has no faith in Judge Erwood's future competence at a retrial.  The opinion, absent a strict legal need, proceeds to point out two other clear errors by Erwood and orders him not to commit the same errors at any retrial.

Ouch.

P v. Ortiz (6th Dist.): Some VC10851 Convictions Fall Within PC490.2 and are PC1170.18 Eligible

This is another opinion finding that certain VC 10851 convictions fall within PC490.2, necessarily making such convictions misdemeanors, and eligible for relief pursuant to PC 1170.18.

Two weeks after the owner reported her car stolen, Ortiz was found in possession of the car.  The license plate of the car had been switched and burglary tools were found.  Ortiz was charged with, and pled guilty to, violating VC 10851 which proscribes taking or driving a vehicle without the owners permission.

Following the November 4, 2014, passage of Proposition 47, Ortiz petitioned pursuant to PC 1170.18 to reduce his VC10851 conviction to a misdemeanor.  The trial court denied the petition, without receiving any evidence, on the basis that a VC10851 conviction is not an eligible conviction under PC 1170.18.

A Sixth District panel affirms the denial, without prejudice, but holds that a 10851 conviction for taking a vehicle worth 950 dollars or less is eligible for 1170.18 relief.  Since the trial court did not receive any evidence, Ortiz may file another petition and present evidence the car's value.

The analysis is tight, focusing on the statutory language without any premature larks to the land of initiative history and avoiding defendant "windfalls".  The threshold issue is identified, correctly, as whether or not Ortiz's VC 10851 conviction would have necessarily been a misdemeanor had Ortiz committed the crime after November 4, 2014.  Resolving this issue requires looking to Penal Code section 490.2 and determining whether Ortiz's 10851 conviction falls within the language of 490.2.

The court treats the opening prepositional phrase of 490.2 as illustrative, not mandatory.  This finding means the fact 10851 does not define "grand theft" is not fatal; any theft of property not more than 950 dollars falls under 490.2.

Since 10851 is disjunctive, it can be violated by either taking a vehicle (a theft) or just driving a vehicle (not a theft), the court addresses whether Ortiz's conviction was for taking or driving.  The panel finds the facts support a finding that Ortiz's conviction was for taking the car.  So if Ortiz refiles his petition and can meet his burden of showing, by a preponderance of evidence, that the car was not worth more than 950 dollars, he can get his misdemeanor.

P v. Araujo (2nd Dist., Div.6): Another PC 1016.5 Case.

Yesterday I posted a piece on P v. Asghedom, a case reversing a trial court's denial of relief on a defendant's PC 1016.5 motion.  One day later, another case is published on the same statute, with very different facts and a different result.

Ms. Araujo was charged with residential burglary and robbery.  She was offered a plea bargain whereby if she pled guilty to the burglary, she would receive a grant of felony probation and the robbery would be dismissed.  Araujo took the deal and pled to the burglary.

Araujo used a Spanish language interpreter during her change of plea.  Prior to accepting Araujo's plea, the trial judge required Araujo to review and initial a standard court form that lays out for a defendant the rights she necessarily waives in pleading guilty as well as specific consequences of her plea.  One of the consequences stated in the form is that if you are not a U.S. citizen your plea may result in your removal from the country, denial of naturalization, or another adverse immigration result.  The interpreter translated the form for Araujo and Araujo initialed each item, including the immigration warning.

During the plea colloquy, the judge asked Arajuo if the interpreter had read to her, and if she understood, each item in the form.  Arajuo said "yes".  At sentencing, Arajuo received the benefit of her bargain, a grant of felony probation and dismissal of the robbery charge.

Arajuo then moved for relief pursuant to PC 1016.5, which required her to prove that she was not advised of the immigration consequences before her plea was accepted.  That she cannot do.  While the judge did not verbally advise Arajuo, it is sufficient that the form contained the advisement, the advisement was read to her in her preferred language, and she acknowledged (in writing and orally) understanding it.  It is not really a close case.

The contrast between these facts and those in Asghedom is striking.

[And by the way, Justice Yegan, it is "all-too-familiar" not "all-to-familiar".  A typo in your first sentence doesn't exactly inspire confidence (also, you should add the article "a" to "Spanish interpreter" on page two).]

P v. Asghedom (6th Dist.): Exemplary Opinion Regarding PC Section 1016.5

This is an excellent opinion.  The writing is concise, the analysis is straightforward, resulting in an opinion that contains everything an attorney should understand about California Penal Code section 1016.5.  It also reminds us of legal principles too easily forgotten with a primer on the distinction between the burden of proof and the standard of proof.

Mr. Asghedom was born in Eritrea and immigrated to the United States when he was twelve.  In 1989, when Asghedom was 20, he was arrested following a police chase in which the police said they saw Asghedom discard a gun and a baggie of cocaine.  The coke was of substantial mass (2.4g), but all in one package and found in the company of a coke pipe.  Asghedom was high and his wallet light.  He was charged, as to felonies, with possessing the coke for sale, with an enhancement for being armed with a gun.

The trial judge gave an indicated sentence of felony probation, at which time Asghedom pled guilty as charged and received a grant of felony probation, which he eventually completed.

Everything was fine for Asghedom until he went abroad and tried to reenter the U.S. in 2004.  Due to his 1989 conviction, immigration proceedings were commenced, eventually resulting in Asghedom being locked up in an immigration jail in Alabama.

In 2013, Asghedom filed a Penal Code section 1016.5 motion.  Section 1016.5, in pertinent part, states that upon motion of a defendant, the trial court shall vacate the judgment and permit the defendant to withdraw his plea if; [1] the defendant was not properly advised as to the immigration consequences of his conviction prior to entering his plea, [2] when the motion is made, there is more than a remote possibility the conviction will have one of the enumerated adverse immigration consequences, [3] he was prejudiced by the failure to advise, to wit, that if properly advised, he would not have pled, and, [4] he was reasonably diligent in bringing his motion.

There was no controversy as to [1] and [2]; no immigration advisement was actually given and Asghedom was now sitting in Alabama facing removal from the U.S.  The trial judge denied the motion on the basis that Asghedom failed to show [3] prejudice, making no finding as to [4] diligence.

The Sixth District reverses, finding the trial judge abused his discretion.  While admittedly Asghedom's affidavit stated that he would have "reconsidered" whether to plea, while he should have said "rejected" the plea, an examination of the record demonstrates that there was no rational possibility Asghedom would have pled guilty had he been advised of the immigration consequences.

The plea was open with the court indicating probation, meaning the indicated sentence was not an inducement and would have been imposed even after a guilty verdict had Asghedom taken the case to trial, meaning there was no advantage to pleading guilty.  The immigration considerations of a 20 year-old from a conflict zone (Eritrean independence wasn't recognized until 1993) who had been in the U.S. from age 12 would certainly be paramount.  Therefore no reason existed to support the trial court's finding that Asghedom failed to satisfy his burden to show, by a reasonable probability, that had he been told of the immigration consequences of his plea, he would have not pled guilty.

The case is remanded for the trial court to make a finding as to prong [4].