P v. Arredondo (6th Dist.) Blood Drawn from Unconscious DUI Arrestee Under VC Sections 23612 Violated the Fourth Amendment

Mr. Arredondo flipped the Jeep he was driving, injuring himself and a couple of his passengers.  An unconscious Arredonndo was in the hospital when a police officer asked a phlebotomist to draw a tube of blood from Arredondo for a blood alcohol test.  The test came back at the legal limit and Arredondo was charged with felony DUI.

Arredondo moved to suppress the blood evidence claiming it was the fruit of an illegal seizure under the Fourth Amendment to the U.S. Constitution.  The trial court denied Arredondo's motion on the grounds that, while there was no warrant authorizing the blood draw, under California's implied consent statutes Arredondo gave his consent for the blood draw.  The relevant statute, VC 23612, states in pertinent part,

Anyone who drives a vehicle in this state is deemed to have given his consent [to a chemical test]. . . [an] unconscious person is deemed not to have withdrawn his or her consent.  

The Sixth District reverses the trial court's ruling on the issue of consent, but affirms the denial of the motion on the basis the police officer relied in good faith upon the statute.

This is a very complete opinion, utilizing textualism, pragmatism, and an astute reading of precedent.  This issue is whether the language quoted above passes constitutional muster to function as the "consent" exception to the Fourth Amendment's warrant requirement..  It doesn't, says the panel, for a number of reasons.

First, true consent has elements of notice and choice.  A probationer may consent in advance to warrantless searches as a condition of her probation, but her consent is actual (she must agree, verbally in court) and she has a choice (she can refuse probation and go to prison).  Likewise the panel points out that what is commonly described as "implied consent" in the context of the Fourth Amendment is actual consent, such as responding to an officer's request to come into house by opening the door wide and waiving your arm in a welcoming motion.

What we have here is really "imputed consent", which is no more than government fiat.  The panel points out the word "deem" means to treat something as if it were really something else.  You don't "deem" something to be what it is.  The opinion worries of what could follow should it uphold the Constitutionality of this statute.  For instance, what would keep the government from passing a law that states, "Anyone using a public walkway is deemed to have given his consent for a warrantless search of his person and belongings"?

So while the panel finds the statute does not constitute Constitutionally valid consent and thus Arredondo's blood was taken in violation of the Fourth Amendment, they acknowledge there was no way for the police officer to know (by following the statute) he was violating the Constitution.  And since an  violation in objective unawares cannot be dissuaded, the exclusionary rule need not apply.

P v. Descano (1st Dist., Div.4) That Proposition 47 Did Not Include H&S 11358 Does Not Violate the Equal Protection Clause

Mr. Descano grew some marijuana, was caught, and convicted of violating California Health & Safety Code section 11358, cultivating marijuana, a felony.

Descano then petitions the trial court under PC 1170.18 to reduce his conviction to a misdemeanor.  The petition is denied.  He appeals.

A panel of First District justices affirms.  This is no surprise.  Proposition 47 of the November 2014 election enacted no changes to HS 11358, nor did it add or amend any other section which would make Descano's 11358 conviction a misdemeanor if committed post-Proposition 47.

So Descano counters with an equal protection argument.  This argument gets no traction because to violate the equal protection clause the government must treat similarly situated groups differently and this panel believes people convicted of different crimes are not similarly situated for equal protection purposes.

The decision is correct.  Which is not to say California's marijuana laws aren't imbecilic.  They are.  Case in point.  Having one of the following items in your room is a straight felony for which you would be arrested and could go to jail for 3 years, having the other one will get you, at most, an infraction ticket for $125.

                     A                                                                                   B

Take a guess.

P v. Brown (1st Dist., Div.4) PC 69 Conviction Reversed for Instructional Error and Improper Expert Witness Testimony

Mr. Brown was a 67 year old, 140 lb. man riding his bicycle on the sidewalk at  night without a light.  A policeman, zealously enforcing the cycling laws, yelled for Brown to stop.  He didn't; he tossed a baggie of coke on the sidewalk and kept riding.  His attempt to avoid police contact ended when he found himself the recipient of a three punches to the noggin and a knee to the ribs (one broken) from three large policemen.  Brown got the worst of it, although one of the policeman broke his knuckle on Brown's skull.

Brown was charged with the coke (not at issue on appeal) and PC 69, the crime of "using force and violence to resist an executive officer in the lawful performance of his duties".  

At trial, the policemen testified that as Brown tried to ride away, one of the policemen tackled Brown at which time Brown began to throw punches at the policemen.  The tackler said he delivered a "compliance strike" (ordinary folks punch people, government agents "issue compliance strikes"-unless they think you are armed and then they "dispatch a disabling metallurgic projectile of conical form").  This punch to the gut/compliance strike had no effect upon the 140 lb., 67-year old, they claimed, so another officer followed up with three more compliance strikes (one in the ribs and two to the skull).  

Brown's testimony was, without surprise, different.  Brown said that while he was trying to get away, he rode his bike into a curb and flipped over the handlebars.  He said one officer jumped on top of him, kneed him in the ribs and punched him three times in the head.  The other officers never laid a hand on him, Brown said, they just handcuffed him.  He denied trying to punch any policeman, "I wouldn't even try to--I couldn't win anyway."

The State buttressed their case with an expert witness, a policeman who testified that the law allows the police to use reasonable force.  The witness went on to give his legal definition of reasonable force and opine that Brown had engaged in "assaultive behavior" against the officers.  The trial judge instructed the jury on PC 69 and the lesser offence of PC 148.  The jury convicted on the PC69 count.

A First District panel reverses the PC 69 conviction.  It reverses for two reasons.  First, the trial court was required to give an instruction for PC 240, simple assault, as a lesser included offense of PC 69, and it did not.  Second, it was reversible error to permit the expert witness to testify as to matters of law and also error to allow him to give his opinion that the officers simply "did what they were trained to do".  

Both sections of the analysis in this opinion are thoughtful and well researched.  The analysis of expert testimony hits the mark in pinpointing the pitfalls of "expert witnesses" when the topic of expertise is legal in nature.  Then the line between "assisting the fact finder" and "telling the jury how to decide" can become too narrow.  It is the jury who has the task of deciding how much police force is reasonable, not the police.  The opinion puts it quite eloquently.

The law provides a generous mantle of protection to law enforcement officers accused of excessive force, but also contemplates that, where such questions are serious enough to be tried, juries will have a vital role in deciding what constitutes objectively reasonable force, bringing with them their independent sense of the values of the community in which they sit. 

In the end the issue of whether Brown was tackled and tried to punch his way out of an arrest or whether one officer lost his head and socked a compliant old homeless man will get a second look.  This time with an instruction for PC 240, and without a police force expert.

P v. Garcia (Cal. Supreme Ct.) Rule Announced Re: Multiple Burglary Convictions for Entering Rooms Within a Structure

Mr. Garcia, armed with a gun, entered a business which catered to pregnant women and children.  Garcia pointed  his gun at the store clerk and took the money in the till.  He then ordered the clerk into the store's bathroom at gunpoint where he raped her.

Garcia was convicted of numerous crimes, including two burglaries (PC 459), and received a sentence of 74 years, 8 months, to life.  Garcia appealed and asserted that it was error to have found him guilty of two burglaries.  The Court of Appeal affirmed the two burglary convictions.  The California Supreme Court granted review and reverses the second burglary conviction, creating a new rule for entries made within a structure.

The statute at issue is California Penal Code section 459, which states:

Every person who enters any house, room, apartment, tenement, shop, warehouse, store, . . . or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.

The issue is what the legislature meant by "any ... room".  The State and the Court of Appeal take a textual approach, and assert the words themselves reflect the legislature's intent.  When Garcia entered the "store" with an intent to commit robbery, he committed burglary number one.  When Garcia entered a room, the bathroom, with the intent to rape the clerk, he committed burglary number two.  This is not a baseless interpretation.

However the California Supreme Court disagrees.  It finds the legislature likely meant to incorporate common law principles into the language and arrive at the following rule, borrowing some Fourth Amendment language from the United States Supreme Court.

Where a burglar enters a structure enumerated under section 459 with the requisite felonious intent, and then subsequently enters a room within that structure with such intent, the burglar may be charged with multiple burglaries only if the subsequently entered room provides a separate and objectively reasonable expectation of protection from intrusion relative to the larger structure.  

Acknowledging two of the long recognized purposes of the burglary statute is to [1] protect places of security where occupants may feel comfortable enough to dispense with the safeguards commonly taken in public places, and [2] prevent the high risk of harm to persons and property inherent in an unauthorized intrusion, this rule strikes me as reasonable.  If a burglar enters a hotel with the intent to steal from guestrooms, each guestroom into which he enters to fossick for loot should be a separate 459.  But if the same burglar enters a five bedroom house and goes into each bedroom, bathroom, and closet, looking for loot, it seems excessive to convict him of 11 burglaries.

One thing gave me pause though.  Should the rule be different when the subsequent entrance into a room within a structure is for a different criminal purpose than the initial entrance into the structure? Assume Garcia went into the store with the intent to commit a robbery, burglary number one.  Once inside he saw the clerk was a female and only then formed the intent to commit a rape.  It was with this new criminal intent, formed after entering the structure, that he entered the bathroom.  Should that matter?

After announcing their new rule, the Court applies the new rule to these facts and determines that the bathroom within the store did not provide the required separate and objectively reasonable expectation of protection from intrusion relative to the larger structure.

So Garcia gets one of his burglary charges dismissed.

P v. Quiroz (3rd Dist) Court May Not Convene a Competency Trial Upon a State Hospital Report That an Incompetent Defendant is Unlikely to Regain Competence

Mental Illness is a public health issue with which California would rather not deal.  Here a Third District panel nixes a court-created fix designed to avoid dealing with the problem.

Mr. Quiroz is charged with assault with a deadly weapon resulting in great bodily injury.  He also has at least two prior strikes.  March 2007, the trial court finds Quiroz incompetent to stand trial, suspends criminal proceedings, and sends him to a state mental hospital.  December 2010, Quiroz returns to court with the hospital's final report that Quiroz is still incompetent to stand trial, is unlikely to regain competence, and should be the subject of a conservatorship.

The trial court orders the County to file conservatorship proceedings, which the County refuses to do, saying Quiroz is not currently dangerous.  The prosecution asks the court to hold a new competency hearing, which the court does, despite no statutory authority to do so.

After this hearing (the opinion does not state what evidence was received), viola! the court finds Quiorz is now competent.  Problem solved.  Quiroz pleads guilty in return for a sentence of ten years inprisonment.  The County and trial court may now breathe a sigh of relief and pass the buck to the Department of Corrections.

And they would have gotten away from it had it not been for those three meddling justices in the Third District.

The opinion is linear and there is little within it to dispute.  Incompetency proceedings are creatures of statute and such creatures are strictly construed.  The statute enumerates when competency hearings may be held; when a court doubts a defendant may be incompetent, after commitment to a state hospital for 18 months, and when a state hospital certifies a previously incompetent defendant has regained his competency.  Since Quiroz's situation does not fit within any of these, the court had no jurisdiction to hold a competency hearing.  The trial court's legal options were to order a conservatorship be filed, dismiss the charges and release Quiroz, or some other proceeding authorized by the conservatorship statutes.

Situations akin to Quiroz's are not that rare  The reason is that California has no properly funded, comprehensive scheme to deal with mentally ill folks who break the law.  Those like Quiroz have been determined by duly qualified psychiatrists, psychiatric nurses, and social workers, to suffer from a mental defect from which they are not likely to recover.  They cannot, Constitutionally, be locked up for their deeds of misdoing.  But many of them are not fit to be released, without assistance and supervision, into the community.

So the option is a conservatorship, which is funded either by the County or the State, depending upon the type of conservatorship.  For people requiring extensive care or a secure facility, this can be very expensive.  Since most indigent, incompetent, criminal defendants have little or no resources, these conservatorships become very expensive for a County.  County officials are then reticent to conserve these people.  Exhibit A, after the trial court ordered the County to initiate conservatorship proceedings for Quiroz, the County balked, claiming Quiroz was not a danger to others.  Do you believe this?  A mentally incompetent man with a history of arson who is now alleged to have injured someone by assaulting them with a deadly weapon is not currently a danger to others?

In this situation, a trial judge may be loathe to force the matter with the County.  California judges are elected after all, and picking a fight with the County brass by ordering them to embark on a course of action that may force the taxpayers to pay millions of dollars to humanely house a "criminal" may not be the best career move.  This is only slightly better than the alternative legal option of just releasing the mentally ill person.  Imagine running for judicial reelection as the judge who released a mentally incompetent prisoner with Quiroz's record from custody should Quiroz go on to commit another violent crime.

So I can see why a judge may be motivated to create another option.  I would be very interested to read the transcript from the competency hearing.  After two findings of incompetency and three unsuccessful years in a psychiatric hospital program designed to restore him to competency, qualified psychiatrists opined Quiroz was unlikely to regain his competence.  Something then overcame that evidence and prompted the trial judge to substitute his own judgement for that of the psychiatrists.  I wonder what it was.

The solution is simple, but expensive and unpopular.  California needs a properly funded, comprehensive scheme designed to protect the public and make sure that mentally ill persons are treated humanely.

P v. Kocontes (4th Dist., Div.3) No Collateral Estoppel Effect for Magistrate's Dismissal for Want of Territorial Jurisdiction

In 2006, Mr. Kocontes went on a Mediterranean cruise with his friend.  Kocontes reported his friend missing and the Italian authorities found the friend's body off the coast of Italy.  An autopsy was performed in Italy after which the Italians did not charge Kocontes with any crime.

Back in the U.S., a federal grand jury declined to indict Kocontes.  But come 2013, the Orange County district attorney filed murder for hire charges against Kocontes.  Prior to his preliminary hearing, a magistrate dismissed the case for lack of territorial jurisdiction (PC 778a).

The State then obtained a grand jury indictment.  Kocontes moved to dismiss based, among other grounds not relevant here, upon collateral estoppel.  His motion was denied, numerous petitions were filed for writ relief, and the case ends up before a Fourth District panel.

In a 2-1 decision, the panel affirms.  The majority's decision can be condensed as follows; [1] the magistrate's dismissal for want of territorial jurisdiction fell within one of the the grounds for dismissal enumerated within PC 1387, [2] as section 1387 allows for refiling subsequent to a dismissal upon those grounds within 1387, the State could refile the case, [3] since the State had the statutory authority to refile the case the magistrate's dismissal cannot be considered "final", therefore [4] since only final judgments have collateral estoppel effect, the magistrate's dismissal had no such effect.

The dissent writes that there is no way the magistrate's dismissal fell within 1387, since that section applies to, in pertinent part.

An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995.

This appears clear, if the dismissal is pursuant to Chapter 8 of the penal code (sections 1381 to 1388), or sections 859b, 861, 871, or 995, the dismissal does not bar a subsequent refiling, and hence, is not final.  But the dismissal here doesn't appear to have been made under any of these sections, rather it was a non-statutory motion (based upon PC 778a) or a demurrer under section 1008, and sustained 1008 demurrers explicitly are not subject to refiling under 1387.

What makes Justice Thompson's dissent so persuasive is that the majority doesn't even attempt to address it.  Ordinarily when there is a dissent, the majority opinion will address the schism in legal reasoning that resulted in the dissenting justice's disagreement and explain why their reasoning is superior.  Here, rambling on for 24 pages, the majority appears to have purposefully avoided addressing the dissent's two pages of, at least to me, succinct and persuasive analysis.

Further confusing is the majority's language on page 14 which appears to agree that the territorial jurisdiction dismissal was a non-statutory dismissal and that non-statutory dismissals do not fall within PC 1387.  Okay, then the dismissal would not be one for which the State can subsequently refile, hence a final judgment.  Am I missing something?

P v. Navarro (4th Dist., Div.3) Parole Term Concerning Computer Use Found Unconstitutionally Vague

A previous post discussed the issues created when courts must interpret backwater scientific or technological language.  This case is an example of one of those issues, vagueness.  When the parole board gives a parolee a list of prohibited activities, the language used must make it clear to the parolee exactly what he is not to do.  Given the pace of technological progression, this can be difficult.  Case in point, Mr. Navarro was given the following proscription.

“You shall not use an electronic bulletin board system, [I]nternet relay chat channel, instant messaging, newsgroup, usergroup, peer to peer; i.e., Napster, Gnutella, Freenet, etc. This would include any site-base; i.e., Hotmail, Gmail, or Yahoo e-mail, etc., which allows the user to have the ability to surf the [I]nternet undetected.”

Would you know exactly what this prohibits?  I don't (internet relay chat channel?).  Neither does this Fourth District panel which holds the language is void for vagueness.  The panel, quite reasonably, concludes that it is fine to place certain restrictions on Mr. Navarro's use of communicative technology, but the restrictions have to at least be comprehensible.

This would seem a nice spot to poke fun at the drafters of this gobbledygook, but I don't think it would be deserved.  I do not think I could do much better.  And even if I could come up with a better worded proscription, it would likely be meaningless in a matter of months as new software and devices emerge.  Erring on the side of inclusion doesn't seem to be an option either. You cannot, in today's world, ban a parolee from all internet usage as my better-educated (and better-paid) friends in the technology sector inform me that anytime you pay for goods using a credit card, debit card, EBT card, gift card, or bank check, you are using the internet.  So too when using an ATM or asking your bank clerk for a balance slip.  As parolees are usually required to have jobs, any job involving commerce is likely to require using the internet.  

It is a deceptively difficult assignment.

P v. Perry (2nd Dist., Div.1) A Second District Panel Rejects the States "Benefit of the Bargain" Argument and Affirms 1170.18 Relief

Mr. Perry and his codefendant accosted two men outside a restaurant and demanded the men empty their pockets.  In committing this crime (for which Perry could have received 15 years), Perry made off with the lucrative haul of one ten dollar bill, one used cell phone, and one pack of smokes.

An information was filed charging Perry with one count of robbery (PC 211) and one count of grand theft from a person (PC 487(c)), along with allegations that he had suffered a previous strike conviction as well as a conviction constituting a five-year prior.

Perry and the State entered a plea bargain whereby Perry would plead to the grand theft from a person charge, admit the prior strike, and accept a six year prison sentence.  For their part the State promised to move to dismiss the remaining charge and allegation.  The trial court accepted the plea bargain, Perry pleaded as promised and took his six year sentence, whereupon the State kept their promise to move to dismiss the balance of the information.

Comes then November 4, 2014, and the California voters pass Proposition 47.  Since Perry's grand theft from a person was of items worth less than 950 dollars, he petitioned the trial court to reduce his conviction to a misdemeanor and resentence him to 180 days (the new applicable penalty) under PC 1170.18.  The State agreed Perry's conviction was eligible, but wanted the court to allow it to reinstate the dismissed count and allegation.  The trial court rejected the State's request, reduced Perry's conviction to a misdemeanor, and resentenced him to 180 days, which he had already served, and released him.  The State appealed.

A Second District panel affirms.  This opinion is similar to those in P v. Gonzalez and P v. Brown.  The sole published opinion that comes down on the other side of the question is Harris, which appears to use the case of P v. Collins (and a questionable distinguishing of Doe v. Harris) to support its holding.  However, I question whether the Harris panel actually read Collins.  

In Collins, the defendant was indicted November 1974 on 14 felony counts.  Three of those counts were violations of PC 288a, which at the time criminalized oral copulation, consensual or otherwise.  Attached to these three counts of oral copulation were enhancements alleging that the oral copulation was achieved by use of force.

Collins and the State entered into a plea bargain.  Collins would plead guilty to one count of oral copulation, PC 288a, without the force allegation (meaning he was pleading to consensual oral copulation) in return for dismissal of the balance of the counts.  In 1974, the penalty for consensual oral copulation was one-to-fifteen years in the state prison.

But before Collins could be sentenced, he was found to be a Mentally Disordered Offender (MDO), his criminal case was suspended, and he was placed in a state mental hospital.  In April of 1976, Collins' criminal case was resumed and he appeared for sentencing whereupon the trial court sentenced Collins to one-to-fifteen years in the state prison.

The glitch was that in 1975, the legislature had decriminalized consensual oral sex (brilliant), meaning that Collins had been sentenced to prison for something that wasn't illegal anymore.

Upon appeal, Collins' sentence was reversed on the principle that absent some indication otherwise, when the legislature declares something is no longer criminal, it is an indication of an intent to no longer impose punishment upon someone for such an act.  But, the opinion stated that Collins should not be let off the hook entirely, and allowed the State to reinstate the dismissed counts upon remand.

However (and this is why you need to read the entire opinion) the opinion places a cap on Collins' punishment.  A cap of three years.  Now under the original plea agreement, the applicable sentence was one-to-fifteen, meaning Collins, at the pleasure of the parole board, could have done 15 years.  I assume the three years represented the amended punishment for a 288a.  So while Collins does stand for the proposition that a subsequent change in the law should not allow a defendant to escape all punishment under his plea bargain, it certainly does not stand for the proposition that a subsequent change in the law should not allow a defendant to serve a lesser punishment than under the plea bargain.

In this respect the holding in Collins is not inconsistent with Perry, Gonzalez, and Brown.  

P v. Goolsby (II) (4th Dist., Div.2) Double Jeopardy Prohibits Retrial After Erroneous Discharge of Jury Without Verdicts on Lesser-Related Counts.

This case began when Mr. Goolsby, upset with his girlfriend, torched his two motor homes, one of which was inhabited by him and his girlfriend.  Goolsby was charged with attempted murder, PC 187/664, and arson of an inhabited structure, PC 451(b), with an enhancement for multiple structures.

Following the taking of evidence, the trial court correctly instructed the jury as to attempted murder, arson of an inhabited structure, and the multiple structure enhancement.  The jury was also instructed as to the lesser offenses of arson of property, PC 451(d), unlawfully causing a fire that burned an inhabited structure, PC 452(b), and unlawfully causing a fire, PC 452(c),(d).  The trial judge instructed the jury that these lesser offenses were "lesser included offenses" and that the jury should not return a verdict on any of the lesser offenses unless they found Goolsby not guilty of the greater offense of 451(b).

The jury found Goolsby not guilty of attempted murder.  They found Goolsby guilty of arson of an inhabited structure and found true the multiple structure enhancement.  Goolsby received a sentence of 48 years to life and appealed.

In Goolsby (I), a Fourth District panel reversed Goolsby's conviction.  The panel did so on the ground the trial evidence was insufficient for a finding the inhabited motor home was a "structure" under PC 451(b).  Further, in Goolsby (I), the panel held they could not reduce the conviction to arson of property, PC 451(d), because arson of property is not a lesser included offense of PC 451(b), rather it is a lesser related offense.  Finally, the Goolsby (I) opinion prohibited retrying Goolsby for arson of property on the ground such a retrial would violate California Penal Code section 654.

The California Supreme Court granted review and reversed the Goolsby (I) holding that PC 654 prohibited retrial on the 451(d) lesser related count.  Because the jury had been instructed as to the lesser related 451(d) and Goolsby's lawyer did not object to that instruction, PC 654 did not prohibit retrial on that charge.  The California Supreme Court then remanded the case back to the Fourth District to determine the open question of whether the Double Jeopardy Clause prohibits retrial.

On remand, the Fourth District holds that the Double Jeopardy Clause does prohibit the State from retrying Goolsby on any of the lesser related offenses.

Double Jeopardy prohibits retrial on a count when a jury is discharged without rendering a verdict on that count unless [1] the defendant consents to the discharge, or [2] legal necessity requires discharge, such as a hung jury.  The panel finds neither exception applicable here.

This is all traceable back to the trial court's erroneous instruction that the lesser offenses were "lesser included" offenses of arson of an inhabited building.  Lesser included offenses are crimes that are necessarily committed when the greater offense is committed, hence no verdict need be rendered on lesser included offenses upon a verdict on the greater offense.  Lesser related offenses are crimes that have elements in common with the greater offense but are not necessarily committed when the greater crime is committed.  A verdict is required for lesser related offenses regardless of the a jury's verdict (or lack thereof) on the greater.

The trial court's error of discharging Goolsby's jury without having the jury render verdicts on the lesser related counts means the jury's discharge is considered an acquittal on those counts unless Goolsby consented to the discharge.  While Goolsby did not object, that does not constitute consent.

Therefore Goolsby cannot be retried for any of the lesser offenses.

P v. Brown (4th Dist., Div.2) Another Case Upholding PC 1170.18 Relief Despite the State Not Getting the "Benefit of their Bargain"

Ms. Brown was charged with multiple counts of possessing stolen property and identity theft.  Brown and the State entered into a plea bargain whereby Brown agreed to plead guilty to one of the possession of stolen property counts and accept a two-year jail sentence.  For its part, the State agreed to dismiss the balance of the counts.  The court accepted the plea bargain, took Brown's plea, sentenced her to two years, and dismissed the remaining counts upon motion of the State.

While Brown sat in jail, California voters passed Proposition 47, which had the effect of reducing Brown's possession of stolen property conviction to a straight misdemeanor punishable, at most, by one year in jail.  Brown petitioned the trial court pursuant to PC 1170.18 to reduce her crime to a misdemeanor and resentence her.  The State objected to no avail and the trial court granted the relief sought by Brown.  The State appealed.

A Fourth District panel affirms, agreeing with P v. Gonzalez.

The panel's opinion is very similar to that in Gonzalez.  First, a statutory analysis resulting in the finding that Brown was eligible for the relief she sought.  The State urges the panel to do a little judicial editing of the statute (requiring Brown to prove the State would have offered her the same plea bargain post-Proposition 47, or alternatively, requiring her to prove the dismissed counts were eligible), which it declines to do.  Finally the State tries the "okay she's entitled to the relief, but then we should really get to add back the dismissed charges" tact.  But that dog wont hunt here as the panel points out the Doe v. Harris decision is quite on point in that while a court cannot unilaterally change an executed plea bargain, California lawmakers (legislature or electorate) can, and here they did.

So all that is left is a remand for the trial court to determine whether to place Brown on one year of parole or exercise its discretion to relieve her of that obligation.

[As A.G. Harris is a declared Democratic candidate for the U.S. Senate and criminal justice reform is expected to be part of her platform, I wonder how she'll respond to questions about why, after her California voters passed such reforms, she so intensely fought to deny defendants the benefits.]

P v. ZarateCastillo (3rd Dist.) PC 288.7(b) & 289(a)(1)(A) are Specific Intent Crimes

Mr. ZarateCastillo was convicted by a jury of, among other crimes, two counts of PC 288.7(b), sexual penetration of a child 10 years or younger, and one count of PC 289(a)(1)(A), forced sexual penetration.  The trial judge instructed the jury that these crimes were general intent crimes.

“For you to find a person guilty of these crimes . . . , that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose. However, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime."

This Third District panel finds the instructions erroneous, but finds the error harmless beyond a reasonable doubt.

The correct instruction is as follows.

 “For you to find a person guilty of these crimes . . . , that person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with the specific intent and/or mental state. The act and the specific intent or mental state required are explained in the instruction for that crime. I will be instructing you as to all of those crimes in a moment.”  

The reason the panel finds the mistake didn't matter was that the instructions given for the specific crimes included the language, "for the purpose of sexual abuse, arousal or gratification".  This language, the panel believes, overcomes any prejudice to ZarateCastillo from the incorrect mental state instruction, because it explicitly tells the jury they must find the applicable "specific intent" to convict on those particular counts.

P v. Garner (3rd Dist.) Resentencing Pursuant to a Successful PC 1170.126 Petition Allows Enhancements.

Before the 2012 passage of Proposition 36, Mr. Garner pleaded guilty to felony possession of stolen property.  He admitted three one-year enhancements under PC 667.5(b) and having four prior "strike" convictions.  In an act of mercy, the sentencing judge struck the punishment for the 667.5(b) enhancements and sentenced Garner to 25 to life.

Following the November 2014 election, Garner returned to the trial court petitioning for relief under PC sections 1170.18 (Proposition 47) and 1170.126 (Proposition 36).

Garner's 1170.18 petition was denied because the value of the stolen property possessed was greater than 950 dollars.  His 1170.126 petition was granted and his 25-life sentence recalled.  The court resentenced Gardner as follows: a three year upper term sentence for the possession of stolen property, doubled to six years because of the prior strikes; added to these six years were the three one-year 667.5 enhancements for a total of nine years.

Garner appeals his nine year sentence claiming the statute governing his resentencing, PC 1170.126, does not allow the court to impose enhancements.  A Third District panel affirms the nine year sentence.  But Garner's argument is (surprisingly) not without some merit.

PC 1170.126 states, in pertinent part, that the resentencing shall be  “pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12.”  Obviously the next step is to look at 667(e)(1) and 1170.12(c)(1).  There we find the following.

(1) If a defendant has one prior serious and/or violent conviction . . . the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction.” (§ 667, subd. (e).)

                                                                                  and,

(1) If a defendant has one prior serious and/or violent felony conviction . . . the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction.” (§ 1170.12, subd. (c).)  

Clearly, neither 667(e)(1) nor 1170.12(c)(1) say anything about enhancements.  But the introduction language to both 667 and 1170.12 states,

“For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has one or more prior serious and/or violent felony convictions:"

So the real issue, IMEO, is whether the introductory language is necessarily included within the referenced subdivisions.  That argument for inclusion is strong, and the panel would have been wise to base their holding on such a textual basis.  Instead, the panel points to a prior case holding that following the "recall" of a sentence the court may reconsider "the entire sentence".  But this citation doesn't resolve the issue of whether the language of Proposition 36 expressly states the court may not reconsider the entire sentence.  If it does, the cited case is of little value.  "Recall" is the act of undoing a previous sentence; "resentencing" is the act of imposing a new sentence.  They are two different concepts.  By confusing the two, the panel weakens their holding.

This is really just a question of statutory interpretation.  Had the court followed the cannons of statutory interpretation they would have arrived at the same result.  Is the language susceptible to more than one reasonable interpretation?  Yes, one interpretation is to limit the subsections to the language contained therein (Garner's choice) and the other is to incorporate the prefatory language (the State's choice).  Having been shown to be ambiguous, which interpretation best reflects the likely intent of the electorate?  Since the new post-Prop 36 sentencing scheme, had Garner possessed the stolen property today, would allow for the enhancements, it makes sense that the electorate meant to treat Garner the same way.

That's how I would have done it.

   

California Supreme Court To Decide Whether VC 10851 Falls Within Proposition 47's PC 1170.18

The California Supreme Court has granted review in P v. Page.  A prior post on the District Court of Appeal opinion can be found here.  You can follow the case through the California Supreme Court here.

P v. Cunningham (4th Dist., Div.2) PC 12022.7(b) Enhancement Affirmed Where Doctors Sedated the Victim to Save Her Life

Mr. Cunningham robbed a tobacconist and crushed part of her skull with a mallet.  The neurology team at the hospital determined that it was necessary to place the victim on a ventilator, which requires heavy sedation to avoid complications that arise when a large tube is placed down one's throat into one's lungs.  She was on the ventilator during surgery and for 11 days following surgery.

Cunningham went down for attempted murder and robbery, with an enhancement for each crime under PC 12022.7(b), a five year enhancement for "infliction of great bodily injury which caused the victim to become comatose due to brain injury."  It is this enhancement that Cunningham appeals.

The Fourth District panel affirms the enhancement.  Upon the facts in this case, the decision seems a no-brainer.  But, reading the decision over a few times, it does illustrate a broader issue, the schism between legal language and science.

At best, most attorneys, judges, and legislators, possess the scientific literacy of a high school sophomore from 1985.  Science and technology (thankfully) progress at a dizzying pace.  Law is limacine.   What happens when the state of an art renders legislative language useless?

The PC 12022.7(b) enhancement uses the word "coma" (Greek for "sleep), a word that has limited meaning in modern medicine.  Science has progressed beyond this general word and, instead, has a much more complex rubric to describe states of unconsciousness.  Depths of sedation and anesthesia are now measured using what is called a bispectral index. A vegetative state, something most of us laymen would call a coma, is no coma.  It is an Appallic Syndrome.

So when a prosecutor asked the physician in this case if the victim was placed in a medically induced coma, he honestly had to say that medicine no longer uses such a term.  Which means it is up to judges and lawyers to give legal meaning to the word "coma" in 12022.7(b).  A task most of us are not up to.  My evidence?  The panel here assigns the following definition to the word "coma":

"a state resembling a coma characterized by profound unconsciousness"

So, coma is a state resembling a coma?  If my second grade grammar teacher is alive, she's fuming.  I agree with the panel that whatever the legislature meant when they used the word "coma", it applies to Cunningham's case.  But looking at the macro-view, the legal-scientific schism is not going away.

 

P v. Gonzalez (4th Dist., Div.2): There Is No Benefit-of-the-Bargain Exception to PC 1170.18 Relief (Agreeing with In Re T.W & Disagreeing with P v. Harris)

In 2011, Ms. Gonzalez was charged with four crimes; PC 211-robbery, PC459- felony burglary, PC487(c)-felony grand theft, and PC242-misdemeanor battery.  Her case was settled by a plea bargain.  Under the terms of the plea bargain, Gonzalez pleaded guilty to the felony grand theft and misdemeanor battery charges and was sentenced to felony probation.  In consideration for Gonzalez's pleas and acceptance of felony probation, the State successfully moved to dismiss the robbery and burglary charges.

Comes the November 2014 passage of Proposition 47 and Gonzalez subsequently files a PC 1170.18 petition to reduce her felony grand theft conviction to a misdemeanor and to be resentenced to misdemeanor probation.  The State opposes the petition and, in the alternative, asks the trial court to allow them to reinstate the dismissed charges should the court grant the petition.  The trial court grants the petition, resentences Gonzalez to misdemeanor probation, and denies the State's request to reinstate the dismissed counts.  The State appeals.

The Fourth District panel affirms, disagreeing with the Second District's opinion in Harris v. Superior Court on one determinate point.

As did the Harris court, this panel examines the plain language of PC 1170.18 and finds that Gonzalez is eligible for the relief requested.  It is difficult to argue otherwise.

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. . . .

Gonzalez is serving a sentence.  Is it for a conviction?  Yes.  Was her conviction by trial or plea?  Yup, it was by plea.  Is the conviction for a felony that would have been a misdemeanor had Prop47 been in effect at the time?  Yes. Clearly, under the language, Gonzalez is eligible.

The State's response is that 1170.18 contains a silent exception for plea bargains by way of the contract principle that contracts are presumed to operate under the law in effect at the time and do not anticipate subsequent changes in the law that increases the burden on a contracting party.  This would be more convincing argument had the California Supreme Court not recently rejected it in their 2013 opinion in Doe v. Harris (Doe)

Doe was an advisory opinion penned at the request of the United States Court of Appeal for the Ninth Circuit.  In that case a defendant entered into a plea bargain where he would plead guilty to a sex crime that did not require him to register as a sex offender in return for dismissal of a charged crime that would have required him to register.  After the parties had entered into, and executed, the plea agreement, the law was changed to require sex registration for persons convicted of the crime to which the defendant pleaded.  No one could say this did not alter the contract to increase the burden upon a party.  However, perhaps for reasons of pragmatism (or if you are a cynic, sadism), the California Supreme Court held that plea bargains in criminal cases, although a form of contract, are deemed to recognize the legislative power to change the laws for reasons of public policy, and implicitly agree to such changes.

And Doe really dooms all the State's arguments here.  "Our expectations were frustrated," says the State.  Well, so were the defendant's expectations in Doe.  The language in Doe is tough to get around.  The best efforts of two justices in the Second District resulted in the burlesque of an opinion that is P v. Harris.  

All the cases cited by the State both precede Doe and can be distinguished.  As a final arrow, the panel notes that the authority granted to the trial court under 1170.18 is limited to determining whether relief is proper or not and does not include the authority to reinstate dismissed counts or unilaterally withdraw the defendant's plea.

I continue to find it poetic that the lawyers representing the People of the State of California seem to resent, and actively oppose, their client's legal choices.

P v. Carrea (4th Dist., Div.1) Another Opinion Holding a Subsequent 1170.18 Grant is of no Effect as to Prior 667.5(b) Enhancements

This is an opinion agreeing with P v. Ruff and P v. Valenzuela that an 1170.18 misdemeanor reduction has no effect upon a previously imposed prison prior under 667.5(b).

Mr. Carrea was convicted of a felony 484/459 in 2004 for which he served a prison term.  In 2012, Carrea was convicted of felony domestic violence, PC 273.5(a).  He was sentenced to prison on the 273.5(a) and one year was added under PC 667.5(b) for his 2004 prison term.

In 2015, Carrea petitioned for, and was granted, a misdemeanor reduction for his 484/459 via PC 1170.18.  His reduction in hand, Carrea now seeks to reduce his 2012 sentence by one year on the theory that since his 2004 484/459 conviction is now a misdemeanor, it cannot legally remain the basis for a one-year 667.5(b) enhancement.

The Fourth District panel disagrees.  While following the opinions in Ruff and Valenzuela, the panel adds two wrinkles, one valid and one dubious.

The valid wrinkle is the (obvious, but previously unrecognized) notion that PC 1170.18 only speaks to resentencing for convictions which would have been misdemeanors if committed after November 5, 2014.  Since Carrea's conviction is for PC 273.5(a), which was not made a misdemeanor by Proposition 47, the procedural vehicle of 1170.18 provides no relief.  It is difficult to argue with this point.

The dubious wrinkle is that the panel states that Proposition 47's language is unambiguous that it does not apply to prior prison terms.  This is stretching it.  The language that once a conviction is reduced to a misdemeanor it is a "misdemeanor for all purposes" does not exclude the possibility that "for all purposes" may include prior prison terms.  But for this piffle, the opinion is reasonably convincing.

P v. McCarthy (1 Dist., Div.5) PC 1202.4(f)(3)(F) Which Allows Noneconomic Restitution for "Violations" of PC 288 Is Not Limited to "Convictions"

Mr. McCarthy was convicted of PC 288.5, continuous sexual abuse of a child, along with 12 other counts involving sexual abuse.  He was sentenced to 150-to-life plus 32 years.  Additionally, the trial court ordered McCarthy to pay restitution to the victim for noneconomic losses in the amount of 1 million dollars.  It is from this restitution order that McCarthy appeals.

In most criminal cases, once a defendant is convicted, the court must order him to pay restitution to the victim for all economic damages.  Noneconomic damages are usually not recoverable, with an exception found in Penal Code section 1202.4(f)(3)(F), which permits restitution for “[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288.”

McCarthy points out he was not convicted for Penal Code Section 288.  The riposte from the government is "true, you were not convicted of PC 288, but that is not what the statute requires; it requires a violation of PC 288, and you did violate PC288".  This sets the table for the statutory analysis the First District panel must perform.

The panel comes down on the side of the government.  First, the panel observes that the code appears to use "violation" and "conviction" for different purposes.  Second the legislative history shows that originally the word "conviction" was used, but it was replaced by "violations", indicating a desire to expand those eligible for noneconomic damages.  The third observation is rather weak and the opinion would have been better without it.  The panel finds it an "absurd" consequence if "violation" were to be held synonymous with "conviction".  The "absurd consequence" doctrine is a horse that disciplined judges should not ride with frequency.  It is no more absurd to exclude noneonomic damages for PC 288.5 convictions than it would be to exclude noneconomic damages for 187 convictions, 261 convictions, etc.  The "absurd consequences" should really be an inverse "rational basis" test.

But with that niggling criticism, the opinion is solid.  The remaining portion of the opinion analyzes McCarthy's 288.5 conviction and finds that, within that conviction, McCarthy did violate PC 288.

P v. Ruff (5th Dist.) PC 1170.18 Relief Doesn't Include Dismissal of Previously Imposed Prior Prison Term (Agreeing with P v. Valenzuela)

In 2013, James Ruff was convicted of second degree robbery and found to have multiple "prison priors", one-year enhancements pursuant to PC 667.5(b).  The trial judge sentenced Ruff to five years on the robbery plus two prison priors, for a total of seven years.

Subsequent to November 2014, while his robbery appeal was pending, Ruff petitioned under PC 1170.18 to reduce one of the two "prison prior" cases to a misdemeanor.  The petition was granted.  Before the appellate court, Ruff now argues his sentence should be reduced by one year because the conviction which provides the basis for the enhancement has now been deemed a "misdemeanor for all purposes".

The Fifth Circuit panel disagrees.  With reasoning similar to the Fourth District in P v. Valenzuela, the panel holds that as long as a conviction supporting a 667.5(b) enhancement was a felony when the new crime was committed, a subsequent misdemeanor reduction under 1170.18 is of no effect.  

The opinion is on point as to the issue; what is the proper interpretation of the words "for all purposes" within the context of PC 1170.18.  The first step is a determination of whether the language is ambiguous or not.  Clearly it is ambiguous, "for all purposes" can reasonably mean for all time, or it can reasonably mean from here on out.  Ambiguity declared, a resort to secondary sources for an indication of voter intent is the proper course.  

The panel begins with the penal codes' proclamation that all legislation is presumed to be prospective only, saving evidence of a contrary intent.  Then, looking at the voter guide, the panel notes it doesn't really express any intent to reduce the prison terms of offenders whose crimes of conviction were still deemed dangerous enough to merit prison (Ruff's sentence was for armed robbery).  

Finally, the panel distinguishes cases in which a defendant has her conviction reduced to a misdemeanor prior to committing a new offense.  In such cases, the California Supreme Court has held that the conviction, being a misdemeanor at the time the new offense was committed, cannot be the basis for a felony prior enhancement.  Here, as in Valenzuela, the prior at issue was still a felony when the defendant committed the new offense.

There are some considered non-specious arguments for a contrary holding, but the panel's holding is on solid ground.  What I appreciate most about this opinion is that it conducts a proper statutory analysis and does so in a thoughtful manner.  There are no short-cuts, or citations to dubious authority in this opinion.

P v. Arevalo (2nd Dist., Div.3) The Standard for Determining Ineligibility Under 1170.126 is Beyond a Reasonable Doubt

The victim here left the keys in his car while he ran into a relatives' home.  When he returned, the car was gone.  Mr. Arevalo was found shortly after exiting the victim's car.  An unloaded pistol was found upon the passenger seat.  Arevalo choose to have a bench trial.  The court's verdict was guilty on grand theft auto, guilty on driving a stolen car, not guilty on being a felon in possession of a gun, and a not-true finding on the allegation Arevalo was armed with a firearm during the crimes.

Under the, two-strikes-and-a-felony, law then in effect, Arevalo, having at least two previous strikes, was sentenced to 25 to life.

Following the passage of Proposition 36, Arevalo petitioned the court under PC 1170.126 to have his sentence reduced.  The trial court (different judge) found that Arevalo was ineligible for the relief requested under the language that prohibits resentencing for a defendant, regardless of the crime of conviction, who "used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another."   The trial court read the transcript of the bench trial and, respecting the verdict that the gun charge and allegation was not proven beyond a reasonable doubt, found the standard for 1170.126 was the lesser preponderance of the evidence standard, and that the evidence rose to that standard.  Arevalo appealed arguing that the correct standard is beyond a reasonable doubt and that the verdict foreclosed any subsequent judicial finding.

This Second District panel agrees with Arevalo.  The finding of ineligibility is reversed and remanded for further proceedings.

The panel disagrees with Osuna, 225 Cal. App. 4th 1020, which held the preponderance of evidence the correct standard.  Instead, along with a thoughtful discussion on the policy reasons underlying when a particular standard is appropriate, the panel finds the California Supreme Court's language in People v. Johnson 61 Cal. 4th 674, describing the "parallel" proceedings for pre-sentence and post-sentence defendants in Proposition 36, support application of the beyond a reasonable doubt standard to those seeking relief under 1170.126.

P v. Triplett (3rd Dist.) Commercial Burglary for Going into a Business to Try to Cash a Bad Check Can Be a PC459.5

Mr. Triplett was a passer of bad checks.  Actually he was a bad passer of bad checks, he tended to get caught.  He was caught trying to cash a forged check at a Wells-Fargo branch.  He followed this up by trying to cash another forged check at a local Food & Liquor store.

Triplett pleaded guilty to one count of felony second degree burglary for the Wells-Fargo incident.  In the Food & Liquor incident he pleaded guilty to one felony count of second degree burglary and one felony count of trying to pass a fictitious check.  On his change of plea forms, Triplett specified that he had entered each business with the intent to commit theft.

Following the November 2014 election, Triplett sent a letter to the trial court asking his convictions be reduced to misdemeanors under PC 1170.18, added to the books on November 5, 2014, as part of Proposition 47.

The trial court held a hearing regarding Triplett's PC 1170.18 petition.  The government opposed the petition for the burglary counts on the basis that Triplett's felony convictions rested upon an intent to commit identity theft, which placed the convictions beyond the PC 495.5 definition of "shoplifting".  But the government conceded Triplett was entitled to relief on the Food & Liquor ficitious check count since the checks were less than 950 dollars. The trial court asked Triplett's lawyer if he agreed with the government's description of Triplett's convictions as being based upon Triplett's intent to pass bad checks.  Triplett's lawyer agreed.

The trial court denied the petition as to the commercial burglary counts and granted as to the ficitious check count.  The legal basis for the ruling was that this is "not what was envisioned by the proposition or the voters when they voted for Proposition 47".

The Third District reverses as to the Food & Liquor burglary.

The threshold question is whether the trial court erred in using the parties' agreement as to the facts underlying the convictions in making its decision.  Normally the court would be bound by the record of conviction and any legally admissible evidence introduced at the hearing.  Here the prosecutor stated the convictions were based upon Triplett trying to pass bad checks and Triplett's lawyer, in open court, agreed with this proffer.  Can the court then use these facts in arriving at a ruling?

The panel says "yes", fashioning a rule that, IMEO, may prove to be less-than-pragmatic.  The new rule is that facts that the parties agree to may be used as long as they "augment, not contradict or otherwise detract from, the record of conviction".  I know what the panel is trying to accomplish, and it makes sense.  Given the dearth of statutory guidance as how 1170.18 proceedings should be conducted, it promotes efficiency to allow the trial courts to rely upon facts to which both parties agree.  For example, if a defendant was convicted of stealing from a 7Eleven store and the responding police officer's report states the stolen item was a package of cigarettes worth seven dollars, it is certainly preferable to allow the trial court to use this fact (if both sides agree) than to drag the poor police officer into court and make him testify to this fact.  My problem with the rule is that it may lead to niggling litigation over whether the agreed-upon facts "detracted" from the record of conviction or not.  Why not just allow all agreed-upon facts as long as defendants are represented by counsel?

In the end, the new rule doesn't even hurt Triplett.  The panel, correctly, rejects the faulty reasoning in P v. Gonzalez, and finds passing a bad check is a form of theft, theft by false pretenses.  And as 459.5 prohibits entering an open business with the intent to commit theft of not more than 950 dollars, Triplett gets his requested 1170.18 relief on the Food & Liquor 459 conviction.

Unfortunately, there was no recorded agreement by the government's lawyer as to the value of the forged check in the Wells-Fargo count.  Because Triplett never presented any evidence as to the value of that check, the trial court was correct to deny relief on that count.

P v. Ramirez & Villarreal (4th Dist., Div.3): Generic Gang Testimony Did Not Support Holding Order & Subsequent Admission of Gang Testimony at Trial Requires Reversal

Ms. Villarreal had a "Facebook conflict" with a neighbor named Natalie.  Villarreal and her boyfriend, Ramirez, went to Natalie's house to straighten things out.  What happened next was that Ramirez shot  Andy in the face.  The details depend on whom you ask.

Natalie and her brother, Andy, claim that Villarreal came at Natalie with a bat, hitting Natalie on the arm.  When Andy came outside to help his sister, Ramirez shot Andy in the head.

Ramirez and Villarreal claim that Andy was the one with the bat and only after Andy had begun swinging the bat at Ramirez' head did Ramirez shoot.

The government believed Natalie and Andy and charged Ramirez and Villarreal with attempted murder with an gang enhancement and with being active members of a criminal street gang.  At the preliminary hearing, a policeman testified that Ramirez had Sureno gang tattoos and had been photographed wearing blue clothing.  Same policeman then testified that Villarreal was associated with the Surenos by way of dating Ramirez.

As part of proving up the gang allegations and charges, the government introduced prior convictions of two men, one a member of the Eastside Rivas gang and the other a member of the Eastside Victoria gang.  The policeman testified both gangs aligned themselves with the Surenos.

The magistrate issued a holding order as to all charges and allegations.  Villarreal and Ramirez filed PC 995 motions to set side the gang charges and enhancements on the basis that the evidence at the preliminary hearing was insufficient.  The motions were denied and the case proceeded to trial.  A jury convicted Villarreal and Ramirez of attempted murder, but acquitted them of the gang crime and rejected the gang enhancement.  Villarreal and Ramirez appealed, arguing that it was error to deny their PC 995 motions and that said error resulted in the jury hearing irrelevant gang evidence which was prejudicial.

A Fourth District panel agrees and reverses.

The first issue in the opinion concerns the "umbrella theory" of gangs.  At the preliminary examination, the government proceeded under the theory that Ramirez was a member of the Sureno criminal street gang.  Therefore the government had the burden to demonstrate that the Surenos satisfy the penal code's definition of a criminal street gang.  To do this, they introduced evidence of crimes committed by the Eastside Rivas gang and Eastside Victoria gangs.  The witness testified these two local gangs "aligned" themselves with the Sureno gang, but the government presented no facts to support this assertion.  Specifically the government failed to present any evidence of an organizational connection between these subsets and the Sureno gang.  And without this connection, there is insufficient evidence (at this prelim) that the Surenos are a gang.

The panel doesn't stop there.  Even assuming the government had proven the Surenos are a gang, the evidence was insufficient for a holding order because it failed to establish that Ramirez and Villarreal were more than passive participants, meaning that the policeman witness' opinions contrary were "conclusory and factually unsupported".

After finding the PC 995 was erroneously denied, the panel finds that interjecting all the gang evidence into a trial that hinged upon witness credibility, was prejudicial.  The conviction is reversed.

P v. Salvador (1st Dist., Div.2): PC 186.22 Gang Enhancements Inapplicable to Life Terms

In the published portion of this opinion, a First District panel holds that the 10 year enhancement for violent felonies in which a PC 186.22 gang allegation is true, does not apply when the sentence to be enhanced is any life sentence.

This means Salvador's sentence will be reduced from 425 years-to-life to 325 years-to-life.

After reading the factual synopsis, 325-life does not seem excessive.

[The opening paragraph of the opinion requires a correction.   The phrase "brutalized nightmare" should read "brutal nightmare"; Jane Doe was brutalized, her nightmare was brutal.]

P v. Peoples & P v. Casares (Cal. Supreme): Two Death Penalty Affirmances

Death penalty opinions are often legally anodyne.  And this for a logical reason.  In most criminal cases, the state's high court has discretion whether to hear a case or not, reserving its docket for cases with legal issues that are novel or for which there exists a split of opinions in the lower appellate courts.  But death sentences must be heard by the high court, regardless of whether there are legitimate legal issues.  As a result, these opinions, while long and thorough, often contain no real new legal questions.  These are two such opinions.

Here Mr. Casares orchestrated a suppositious cocaine deal, then shot the seller in the head after stealing the product.  Mr. Peoples needlessly murdered multiple innocents during a crime spree.  Both opinions are long and thorough.  I do have one disagreement with Justice Lui in his Peoples' opinion.

The issue is whether the character and credibility of the trial judge is relevant to Peoples' arguments on appeal.  Justice Lui believes it is not.  I disagree.

The trial in Peoples took place in 1999 and 2000.  During the same time, the trial judge was ticket-fixing for family members of Eddie Guardado, then a pitcher for the Minnesota Twins who had once loaned the judge 3500 dollars which the judge failed to repay.  Despite not being the judge who would ordinarily hear ticket cases, he ordered court clerks (who admirably resisted) to dismiss the cases and to "keep this between us". The trial judge was also caught asking a fellow judge to O.R. an acquaintance that was in custody.  This behavior followed a "private" censure in 1997 by the judicial council for using his chambers to solicit money from attorneys and court staff.  In a subsequent disciplinary hearing, the trial judge claimed he did not believe it was unethical or illegal to order court clerks to dismiss cases not properly before him.

Justice Lui believes none of this is relevant to the question of whether Peoples' motion to disqualify the trial judge was improperly denied.  I cannot agree.  When a judge eagerly compromises the integrity of the bench for personal gain and then cannot admit he knew it was wrong to do so, that is relevant to whether that judge is competent to make the life-and-death decisions inherent in a death penalty case.  That he does it again after being warned, only to again feign gormless ignorance that his behavior is unethical and illegal, is embarrassingly relevant.

The judges' behavior (on the record) at Peoples' trial doesn't assuage one's anxiety about his judgment either.

"I specifically and without equivocation ordered counsel to be available for this case and this case only. And I don‘t care if it meant not eating, not sleeping, not taking a shit, it absolutely was to have been focused on this case for the entire time frame from the moment I made that order until the conclusion of the trial."

"To argue it so that [the jurors] are so god damned stupid that they cannot understand simple terminology. And I find offense to that. And assign no significant weight in argument to it. I have said it before, and I will say it again. If our system is so flawed because humans have their heads so far up their ass that they cannot understand the issues at hand in this case or these cases, then we should eliminate the jury system as a whole. 

Peoples' crimes were abhorrent and quite probably the result would have been the same had the case been before a more ethical and competent judge, but that doesn't mean the trial judge's legal and ethical deficiencies are irrelevant.  In judge-speak, "it goes to weight, not admissibility".  

P v. Nichols (6th Dist.) Another Defensible Holding Based on Indefensible Reasoning; A PC496d Conviction is Not Eligible for PC 1170.18 Reduction

In 2012, Mr. Nichols pleaded guilty to buying or receiving a stolen car, PC 496d, a felony.  After the enactment of Proposition 47 in November 2014, Nichols petitioned the trial court to reduce his 496 conviction to a misdemeanor via PC 1170.18.  The trial court denied the petition and Nichols appealed.

A panel from the Sixth District affirms.

While the result is, IMEO, likely correct, the analysis is abysmal, bereft of any intelligent statutory construction.  The reason for my jeremiad is that it has been demonstrated time and again that the analysis this panel utilizes is logically and legally indefensible.  Here is why.  The statute at issue, PC 1170.18, states in pertinent part.

 a person currently serving a sentence for a conviction of a felony who would have been guilty of a misdemeanor had this act been in effect at the time of the offense may petition for a recall of sentence and request resentencing in accordance with Sections 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.

There are two clauses in this language.  The first clause states who may petition for a recall of sentence.  The who are persons serving a sentence for a felony conviction which would have necessarily been a misdemeanor conviction had it occurred after November 5, 2014, the date of enactment.  No list of eligible offenses is provided in this clause.  Instead the conviction must be examined within the context of the post-Prop47 Penal Code.

Clause two tells us for what relief an eligible petitioner may request; "resentencing in accordance with Sections [] 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act."

The enumerated statutes do not constitute a list of eligible felony convictions.  Nor could they.  Sections 459.5 and 490.2 did not exist before Proposition 47.   It is anachronistic, illogical, and a complete abandonment of the cannons of statutory interpretation to hold that the enumerated code sections in the second clause were intended as an exhaustive list of eligible convictions.  Yet, read the following from the opinion.

Since section 1170.18, subdivisions (a) and (b) expressly includes certain theft related offenses (§§ 459.5, 473, 476a, 490.2, 496, & 666), we determine that the intent of the voters was to exclude theft related offenses not mentioned in the statute from reclassification and resentencing under Proposition 47. (See, e.g., Sanchez, supra, 52 Cal.App.4th at p. 1001.) The offense of buying or receiving a stolen motor vehicle is set forth in section 496d, which is a statute not included in section 1170.18, subdivisions (a) and (b). Therefore, under the maxim expressio unius est exclusio alterius, a conviction of violating section 496d is excluded from reclassification and resentencing under Proposition 47.

Really?  So a 2013 felony 459 for entering an open convenience store to steal a can of pop is not eligible for 1170.18 relief?  Since 459 is not included in section 1170.18, expressio unius est exclusio alterius requires such a result, right?  No, because the enumerated statutes in the second clause are the statutes under which the resentencing must take place.  A proper application of  expressio unius est exclusio alterius to this statute means excluding resentencing under any code section not enumerated, not excluding from eligibility any pre-Proposition 47 conviction because it was not under an enumerated section.

Pre-Proposition 47 convictions for Penal Code sections 459, 484e, 485, 487a, 487b, 487c, 487d, et. al. are not mentioned in 1170.18, yet they are undeniably potentially eligible for 1170.18 relief.  Why?  Because if the facts underlying the convictions fall within either 459.5 or 490.2 (crimes nonexistent prior to Proposition 47), they would have necessarily been misdemeanors if committed post-Proposition 47, which is what the initial eligibility clause requires.

Despite the faulty reasoning, the result is correct.  Had Nichols received the stolen car on November 5, 2014, would his crime have necessarily been a misdemeanor?  Nope.  Therefore he is ineligible for relief.  A proper analysis doesn't even get to the second clause of the text regarding the resentencing statutes.

There is a connection between the first and second clauses.  Any pre-Novemeber 2014 crime that satisfies the first clause of eligibility will necessarily fall within one of the enumerated resentencing statutes.  But that is not equivalent to saying only prior convictions under the resentencing statutes are eligible for 1170.18 relief.

An appellate court justice should be able to figure out the difference.

P v. Venezuela (4th Dist., Div.1): PC1170.18 Relief Doesn't Include Reversing Imposition of a Previously Imposed PC667.5(b) Prison Prior.

A previous post on P v. Marks identified the issue, not ripe in Marks, of what effect, if any, Proposition 47 relief would have upon a conviction's status as a qualifying one year prior under PC 667.5(b).  This opinion provides a partial answer.

March, 2014, Ms. Venezuela saw an unoccupied car idling in a residential driveway.  When the car's owner went to get inside the car, Venezuela pushed her down, got in the car, and took off.  A police chase ensued and Venezuela eventually crashed and was apprehended, a baggie of meth being found in her pocket.  She was charged with carjacking, felony evasion, and felony meth possession (H&S 11377(a)).  A one-year enhancement was alleged under PC 667.5(b) for a 2012 felony conviction for receiving stolen property, PC 496(a).

September 24, 2014, a jury convicted Venezuela of all three charges and the court ruled her 2012 PC 496(a) sentence qualified as a one-year enhancement .   October 24, 2014, Venezuela was sentenced to 6 years, 8 months in prison (5 years on the carjacking, 8 months on the felony evading, one year on the 667.5(b) enhancement, and a 2 year concurrent sentence on the felony meth possession).  

November 5, 2014, the statutory additions and amendments of Proposition 47 went into effect.  November 17, 2014, Venezuela filed a PC 1170.18 petition requesting her 2012 496(a) conviction, the conviction whose sentence was the basis for the one-year enhancement, be reduced to a misdemeanor.  The trial court granted the requested relief and reduced the conviction to a misdemeanor.

In a subsequent appeal, Venezuela raises three arguments, two of which are quickly rejected.  The third issue is the interesting one.  Does the November 17, 2014, order deeming Venezuela's 2012 PC496(a) conviction a misdemeanor invalidate the October 24, 2014, imposition of the one-year enhancement for the felony sentence imposed back in 2012?  

The Fourth District panel answers "no", but the answer appears to be based, at least in part, on the timing of the particular events.  Specifically, Venezuela relied on P v. Park, 56 Cal. 4th 782, in which Parks was convicted of a felony violation of PC 245(a)(1), a wobbler.  Imposition of sentence was suspended and Parks was placed on probation.  After Parks successfully completed probation, the trial court reduced the conviction to a misdemeanor under PC 17B.  After the 17B reduction, Park was convicted of a subsequent felony and the trial court imposed a five-year enhancement, under 667(a), for Parks' previous 245(a)(1) felony conviction.  

The California Supreme Court reversed the trial court and held the five-year PC667(a) enhancement inapplicable under the facts. 

"When the court properly exercises its discretion to reduce a wobbler to a misdemeanor, it has found that felony punishment, and its consequences, are not appropriate for that particular defendant. The court noted, however, that "there is no dispute that . . . defendant would be subject to the section 667(a) enhancement had he committed and been convicted of the present crimes before the court reduced the earlier offense to a misdemeanor." 

Venezuela's problem is her PC 1170.18 reduction occurred after the carjacking conviction.   Had she waited until after November 17, 2014, to commit her carjacking, the opinion reads, to me, her 496(a) conviction could not have been the basis of a PC667.5(b) enhancement and she would have saved herself a year in prison.  

P v. Safety Nat'l Casualty (Cal. Supreme Court): Bond Forfeiture and PC977(b).

Safety National Casualty (SNC) is an insurance company.  It posted a bail bond for one Mr. Bent, who was facing felony DUI charges.  At Mr. Bent's arraignment, he entered a plea of not guilty, waived time, and was given a next court date for a pretrial (settlement) conference.

Bent did not show at the pretrial conference.  The trial court ordered SNC's bond forfeited.  SNC opposed the forfeiture on the basis that the pretrial conference was not a hearing for which the bond could be forfeited under PC 1305 upon Bent's failure to appear.  The trial court refused to set aside the forfeiture.  The District Court of Appeal reversed, agreeing with SNC that the missed hearing was not one for which the bond could be forfeited under PC 1305.  The California Supreme Court reverses the District Court, finding the bond was properly forfeited. 

This is a case requiring the interpretation of two statutes, PC 1305 and PC 977.  The pertinent portions of these statutes are:

1305 (a) A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for any of the following: (1) Arraignment. (2) Trial. (3) Judgment. (4) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. . . .

977(b)(1) In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . .

The issues is whether the italicized language in 1305(a) encompasses the italicized language in 977(b), to wit, does the catch-all provision in 977, which requires the defendant to be present at "all other proceedings" absent an executed waiver, constitute a "lawful requirement" within PC 1305.  The Supreme Court holds that it does.

Although as a matter of plain meaning, this appears an easy case, it is made a little more difficult by case law dealing with the inverse situation, where defendants were prohibited from attending certain proceedings they argued they were entitled to attend (side bar conferences and chambers conferences).  Those cases dealt with the Constitutional right of a defendant to be present as distinguished from a statutory obligation to be present.  Once that delineation is made, the analysis is clearer, leading to the holding here that 977(b) imposes a lawful requirement upon a felony defendant to attend all proceedings unless he executes a valid written waiver in open court.