Prior to November 4, 2014, Mr. Davis was convicted of felony possession of methamphetamine, H&S 11377(a), and placed on felony probation. November 5, 2014, the law was changed, via Proposition 47, to reduce H&S 11377(a) to a misdemeanor. Davis returned to court and asked the court to reduce his conviction to a misdemeanor. The trial court responded, "OK, just file a PC 1170.18 petition." Davis responded that he wasn't eligible for a 1170.18 reduction because eligibility under that section requires a defendant be "currently serving a sentence" and probation is not a sentence. The trial court disagreed, Davis filed a 1170.18 petition under protest, and the court granted the petition, reducing Davis' 11377(a) conviction to a misdemeanor.
Why all the fuss from Davis? The speculation is that Davis sought to avoid the firearm prohibition built into 1170.18. Section 1170.18 states that a conviction reduced to a misdemeanor under 1170.18 is a misdemeanor for all purposes, except it does not permit the defendant to possess a gun. Davis may have been thinking that if could obtain a reduction prior to "sentencing", his conviction would not carry a firearm prohibition.
The First District affirms the trial court's ruling, holding that probation is a "sentence" for purposes of PC 1170.18.
The opinion is a exemplary application of the rules of statutory interpretation. The language is examined, found to be ambiguous, and then analyzed within the context of the ends sought by the initiative, as expressed through ballot materials. You may or may not agree with the result, but the method cannot be faulted.
Most impressive to me is that the panel wisely disregarded the parties undisciplined initial bombardment of policy arguments and analogy to precedent in favor of a solid statutory analysis.
As an aside, my prescience identifies a Constitutional issue created by this decision. The Second Amendment, at a minimum, confers the right to possess a gun within one's home for self defense. This Constitutional right is not absolute and prohibiting felons from possessing guns probably passes Constitutional muster. But such exceptions to this Second Amendment right are certainly subject to equal protection principles. Which creates the problem here. Davis, who possessed methamphetamine in 2014, is now a misdemeanant whose Second Amendment right to armed self defense has been taken away due to his prior possession of methamphetamine. Would I be caught today with the same amount of methamphetamine, my crime would be a misdemeanor, and I would retain my Second Amendment right to armed self defense. If Davis were to challenge this disparate treatment how could California respond? Is there any rational reason to treat Davis and me differently, as to a fundamental Constitutional right, for the identical transgression?
Wednesday, March 30, 2016
Tuesday, March 29, 2016
P v. Woodworth (5th Dist.) PC 1170.15 Gives the Court Discretion to Impose a Concurrent Sentence
The same day Mr. Woodworth was released from prison, he met a Fresno prostitute (Ms. C) and invited her into his hotel room. What happened next depends on who you believe. Ms. C says Woodworth choked her unconscious and proceeded to sodomize her. When she came to, Woodworth was still at it and told her if she screamed, he'd kill her.
Woodworth's version was that he contracted with Ms. C for some "rough sex" and received same in return for consideration paid.
A jury believed Ms. C and found Woodworth guilty of, among other crimes, forced sodomy and dissuading a victim of a crime. The trial court sentenced Woodworth to 25-to-life on the sodomy charge and a consecutive three year term for the dissuasion charge. The trial court interpreted PC 1170.15 to require a consecutive full term sentence for the dissuasion in this case. Woodworth appealed the three year dissuasion sentence.
The Fifth District remands the matter for the trial court to resentence Woodworth on the dissuasion count, taking into consideration it has the discretion to impose a concurrent sentence.
The issue is one of statutory construction. Penal Code section 1170.1 provides that when a defendant is sentenced on multiple determinate counts, consecutive subordinate counts are to be one-third of the middle term. Section 1170.15 is an exception to the one-third of the middle term rule. It states in pertinent part:
The AG concedes Woodworth's interpretation is the correct one and the Fifth District agrees. The case is now sent back to the trial court for a determination of whether to run the dissuasion count consecutive or concurrent to the 25-life sentence.
Woodworth's version was that he contracted with Ms. C for some "rough sex" and received same in return for consideration paid.
A jury believed Ms. C and found Woodworth guilty of, among other crimes, forced sodomy and dissuading a victim of a crime. The trial court sentenced Woodworth to 25-to-life on the sodomy charge and a consecutive three year term for the dissuasion charge. The trial court interpreted PC 1170.15 to require a consecutive full term sentence for the dissuasion in this case. Woodworth appealed the three year dissuasion sentence.
The Fifth District remands the matter for the trial court to resentence Woodworth on the dissuasion count, taking into consideration it has the discretion to impose a concurrent sentence.
The issue is one of statutory construction. Penal Code section 1170.1 provides that when a defendant is sentenced on multiple determinate counts, consecutive subordinate counts are to be one-third of the middle term. Section 1170.15 is an exception to the one-third of the middle term rule. It states in pertinent part:
“the subordinate term for each consecutive offense” of dissuading a witness must be the full middle term for the dissuading a witness count plus any enhancements applicable to that count.The trial court interpreted this language as requiring a consecutive full middle term sentence. Woodworth argues the language should be interpreted to mean if the court imposes a consecutive sentence, then it must be full middle term. Under Woodworth's interpretation, the court retains the discretion to decide whether the dissuasion sentence should be consecutive or concurrent.
The AG concedes Woodworth's interpretation is the correct one and the Fifth District agrees. The case is now sent back to the trial court for a determination of whether to run the dissuasion count consecutive or concurrent to the 25-life sentence.
Monday, March 28, 2016
P v. Rogers (3rd Dist.) Defense Attorney Was Ineffective For Failing to Object to Charges Added After Waiver of Preliminary Examination
Mr. Rogers was charged by complaint with felony domestic violence, PC 273.5, and felony false imprisonment, PC 236, with a conduct enhancement for use of a weapon, 12022(b)(1) and a status enhancement for having served a prior prison term, PC 667.5(b). Rogers and the state waived their respective rights to a preliminary examination and the state subsequently filed an information which tracked the complaint.
Four days prior to trial, the state moved to amend the information to add three felonies, assault likely to cause great bodily injury, PC 245(a)(4), assault with a deadly weapon, PC 245(a)(1), and making a criminal threat, PC 422. The state also moved to add a great bodily injury (GBI) enhancement to count one. Rogers' lawyer made no objection and the trial court granted the state's motion.
A jury convicted Rogers of the 2735, 236, and 245(a)(4) counts, finding true the great bodily injury enhancement attached to the 273.5 and the enhancement for having served a prior prison term, 667.5(b). Rogers received an eleven year, 8 month sentence. Rogers then appealed, arguing his lawyer was ineffective for failing to object to the amendment of the information after the waivers of a preliminary examination.
A Third District panel reverses the convictions for the 245(a)(4) and great bodily injury enhancements, affirms the 273.5 and 236 convictions and 667.5(b)(1) finding, and remands for resentencing.
The State concedes Roger's lawyer was ineffective in failing to object to the addition of the three substantive counts, admitting a waiver of preliminary hearing supports a holding order as to only those counts in the complaint. This leaves two contested issues. The first is whether the great bodily injury conduct enhancement could be added following a preliminary hearing waiver. The second issue concerns the remedy; Rogers wants all his convictions reversed while the state contends only those parts of the verdict pertaining to the improperly added counts need be reversed.
Rogers wins the first issue. The panel holds that conduct enhancements (distinguished from status enhancements) must be proven up at a preliminary examination and may not be added following a waiver. This means the GBI enhancement is reversed. The state wins the second issue. After examining the evidence presented at trial, the panel finds the evidence received as to the added counts and enhancements would have also been admissible in a trial limited to the original charges.
The result is the 245(a)(4) count and the GBI enhancement are reversed and the case is remanded to the trial court for resentencing on the affirmed counts and enhancement.
Four days prior to trial, the state moved to amend the information to add three felonies, assault likely to cause great bodily injury, PC 245(a)(4), assault with a deadly weapon, PC 245(a)(1), and making a criminal threat, PC 422. The state also moved to add a great bodily injury (GBI) enhancement to count one. Rogers' lawyer made no objection and the trial court granted the state's motion.
A jury convicted Rogers of the 2735, 236, and 245(a)(4) counts, finding true the great bodily injury enhancement attached to the 273.5 and the enhancement for having served a prior prison term, 667.5(b). Rogers received an eleven year, 8 month sentence. Rogers then appealed, arguing his lawyer was ineffective for failing to object to the amendment of the information after the waivers of a preliminary examination.
A Third District panel reverses the convictions for the 245(a)(4) and great bodily injury enhancements, affirms the 273.5 and 236 convictions and 667.5(b)(1) finding, and remands for resentencing.
The State concedes Roger's lawyer was ineffective in failing to object to the addition of the three substantive counts, admitting a waiver of preliminary hearing supports a holding order as to only those counts in the complaint. This leaves two contested issues. The first is whether the great bodily injury conduct enhancement could be added following a preliminary hearing waiver. The second issue concerns the remedy; Rogers wants all his convictions reversed while the state contends only those parts of the verdict pertaining to the improperly added counts need be reversed.
Rogers wins the first issue. The panel holds that conduct enhancements (distinguished from status enhancements) must be proven up at a preliminary examination and may not be added following a waiver. This means the GBI enhancement is reversed. The state wins the second issue. After examining the evidence presented at trial, the panel finds the evidence received as to the added counts and enhancements would have also been admissible in a trial limited to the original charges.
The result is the 245(a)(4) count and the GBI enhancement are reversed and the case is remanded to the trial court for resentencing on the affirmed counts and enhancement.
Friday, March 25, 2016
P v. Kelly (5th Dist.) Under PC 667.61, Kidnapping the Victim After a Qualifying Sex Offense Satisfies the One-Strike Requirement
Mr. Kelly accosted a pedestrian and twice forced her to perform oral sex. Then Kelly forced his victim into the backseat of his car and drove to a liquor store more than three miles away. When Kelly went into the store, his victim was able to exit the car and run to safety.
The state charged Kelly under the One-Strike law, PC 667.61. In pertinent part, 667.61 prescribes a 25-life sentence for some sex offenses, when those offenses are committed under particular circumstances. Here the "special circumstance" alleged was 667.61(d), that the forced oral copulation was committed under the circumstance where "defendant kidnapped the victim" and the movement substantially raised the risk of harm to the victim. A jury convicted Kelly of forced oral copulation and found true the kidnapping special circumstance. He was effectively sentenced to 33 years to life.
Kelly appealed and the Fifth District affirms.
Kelly argues the special circumstance is inapplicable because he kidnapped the victim after completing his sex crimes, not before or during. This doesn't get much traction from the panel because nothing in the language places any temporal requirement on the kidnapping other than the sex offense be committed "under the circumstances" of kidnapping the victim. Even if "under the circumstances" could be interpreted as "during the commission of", the panel would affirm, noting the continuing nature of Kelly's crime (he was certainly intending to use his victim for more than a drinking partner when he forced her into his car).
The panel also finds that the trial court erred in not suspending a portion of the sentence, however the effective 33 to life sentence is unaltered.
The state charged Kelly under the One-Strike law, PC 667.61. In pertinent part, 667.61 prescribes a 25-life sentence for some sex offenses, when those offenses are committed under particular circumstances. Here the "special circumstance" alleged was 667.61(d), that the forced oral copulation was committed under the circumstance where "defendant kidnapped the victim" and the movement substantially raised the risk of harm to the victim. A jury convicted Kelly of forced oral copulation and found true the kidnapping special circumstance. He was effectively sentenced to 33 years to life.
Kelly appealed and the Fifth District affirms.
Kelly argues the special circumstance is inapplicable because he kidnapped the victim after completing his sex crimes, not before or during. This doesn't get much traction from the panel because nothing in the language places any temporal requirement on the kidnapping other than the sex offense be committed "under the circumstances" of kidnapping the victim. Even if "under the circumstances" could be interpreted as "during the commission of", the panel would affirm, noting the continuing nature of Kelly's crime (he was certainly intending to use his victim for more than a drinking partner when he forced her into his car).
The panel also finds that the trial court erred in not suspending a portion of the sentence, however the effective 33 to life sentence is unaltered.
P v. Soto (6th Dist.) Probation Condition that Defendant Not Move Out-of-County or Leave California Without Permission is Invalid
Mr. Soto was convicted of felony DUI and placed on probation. One of his probation terms was that he "not change [his] place of residence from Monterey County or leave the state of California without permission of the probation officer or further order of the court." Soto appeals this probation term.
The Sixth District finds this probation term invalid.
A probation term is invalid if, [1] it has no relationship to the crime of conviction; [2] it relates to conduct which is not itself criminal; and, [3] it involves conduct not reasonably related to future criminality. The panel finds the residency/travel term satisfies all three and strikes the term. It also implies that it would probably be valid to require Soto to notify his probation officer of his interstate travel.
The balance of the opinion is an exhaustive analysis of fines, fees, and assessments. If you want to understand how a 300 dollar statutory fine ends in a total bill of 2,000 dollars, the latter half of this opinion will explain it to you.
The Sixth District finds this probation term invalid.
A probation term is invalid if, [1] it has no relationship to the crime of conviction; [2] it relates to conduct which is not itself criminal; and, [3] it involves conduct not reasonably related to future criminality. The panel finds the residency/travel term satisfies all three and strikes the term. It also implies that it would probably be valid to require Soto to notify his probation officer of his interstate travel.
The balance of the opinion is an exhaustive analysis of fines, fees, and assessments. If you want to understand how a 300 dollar statutory fine ends in a total bill of 2,000 dollars, the latter half of this opinion will explain it to you.
P v. Zaun (3rd Dist.) Conviction for Attempted Residential Burglary Affirmed
Mr. Zaun and his "crew" went on a burglary spree. He would walk up to the front door of a home and knock. If no one answered, he would jimmy open the door, go inside, and loot the place. If someone answered, Zaun would feign ignorance and ask if "Tyler" was home, and then leave after being told he had the wrong address.
Zaun was convicted for residential burglaries for the empty homes he plundered and was convicted for attempted burglaries for those occupied homes from which he departed upon discovering someone was home. Zaun appealed his attempted burglary convictions.
The Third District affirms.
Zaun argues that there was insufficient evidence that he had the specific intent to burgle the homes when he knocked on their front doors. Rather, his intent was in limbo until determining whether anyone was home. Only after his knocks went unanswered did Zaun form the specific intent to burgle the homes.
It's a good try. But the panel points out that while Zaun's version is certainly reasonable given the evidence at trial, so is the jury's version that Zaun had the specific intent to burgle the homes when he approached their front doors, and just aborted that intent if someone answered. Because there is substantial evidence to support a not guilty verdict does not mean there isn't substantial evidence to support a guilty verdict.
Zaun was convicted for residential burglaries for the empty homes he plundered and was convicted for attempted burglaries for those occupied homes from which he departed upon discovering someone was home. Zaun appealed his attempted burglary convictions.
The Third District affirms.
Zaun argues that there was insufficient evidence that he had the specific intent to burgle the homes when he knocked on their front doors. Rather, his intent was in limbo until determining whether anyone was home. Only after his knocks went unanswered did Zaun form the specific intent to burgle the homes.
It's a good try. But the panel points out that while Zaun's version is certainly reasonable given the evidence at trial, so is the jury's version that Zaun had the specific intent to burgle the homes when he approached their front doors, and just aborted that intent if someone answered. Because there is substantial evidence to support a not guilty verdict does not mean there isn't substantial evidence to support a guilty verdict.
P v. Florez (6th Dist.) Another Judicial Burlesque on PC 1170.18 and 1170.126.
Here a Sixth District panel, over a dissent by P.J. Rushing, tries its hand at disguising personal dislike for a particular law. The fruits of its effort are on par with the Third District's efforts at the same task in People v. Myers. Reading both opinions is like biting into a shiny, red, grocery store apple, only to get a mouthful of dry, mealy, and bland flesh.
For an analysis, just read the recent post on Myers. For an even better analysis, read Justice Rushing's dissent. That Rushing is being intellectual honest is irrefragable.
For an analysis, just read the recent post on Myers. For an even better analysis, read Justice Rushing's dissent. That Rushing is being intellectual honest is irrefragable.
Thursday, March 24, 2016
P v. Solis (2nd Dist., Div.3) Any VC 10851 Conviction is Ineligible for PC 1170.18 Relief
In 2012, M. Solis was arrested as a passenger in a car whose driver did not have the consent of the owner (note it wasn't necessarily a "stolen" car). She pleaded guilty to a felony violation of VC 10851. Effective becomes Proposition 47 in November 2014 and Solis petitions the trial court under PC 1170.18 to reduce her conviction to a misdemeanor. The trial court denies the petition, ruling 10851 convictions are categorically ineligible for 1170.18 relief.
Solis appeals and this Second District panel affirms.
Despite the otiose value of the opinion (the California Supreme Court's decision will be the last word), the opinion is interesting. The opinion correctly identifies the issue; whether Solis' crime would necessarily fall under PC 490.2. The path taken to get to the answer is a novel one.
VC 10851 criminalizes the non-consensual taking or driving of a car with an intent to deprive the owner of possession for any period of time. It also criminalizes being a party to the "stealing" of a car. Clearly one can violate 10851 without committing a theft, as theft requires an intent to permanently deprive the owner of possession. Taking a car for a one-hour joyride, fully intending to return the car, violates 10851. But auto theft also necessarily falls under 10851, as an intent to permanently deprive the owner of possession necessarily includes an intent to deprive temporarily. So a 10851 conviction may involve a theft, but needn't.
How then to reconcile 10851 with PC 490.2, which states,
The panel disagrees, for two reasons. The first reason is that the panel believes that by keeping the preexisting language of PC 666, which refers to "auto theft under 10851", "petty theft", and "grand theft" as separate qualifying convictions, the voters expressed their view that 10851 convictions are distinct from "theft" convictions. The second reason the panel gives for its decision is the "specific governs over the general" cannon.
The panel reasoning is not specious, but it doesn't really satisfy. The "surplusage" argument only works if the "auto theft under 10851" language in PC 666 is truly limited to those 10851 convictions involving an intent to permanently deprive. I was unable to find a published opinion addressing this issue. If the PC 666 language "auto theft under 10851" includes all 10851 convictions, then the panel's argument falls apart as including the 10851 language would not be meaningless under Solis' interpretation. It would function to include within 666 those 10851 convictions not involving theft.
The second argument of 10851 being a more specific statute is weakened by the mandatory language in 490.2 requiring that all thefts of property worth not more than 950 dollars "shall" be considered and punished as petty theft. This language leaves little wiggle room. Interestingly, the panel doesn't really address the mandatory language in 490.2. But the opinion is more thoughtful and scholarly than most Proposition 47 opinions.
Eventually the California Supreme Court will give us their final answer. But until that time, Ms. Solis will remain on felony probation.
Solis appeals and this Second District panel affirms.
Despite the otiose value of the opinion (the California Supreme Court's decision will be the last word), the opinion is interesting. The opinion correctly identifies the issue; whether Solis' crime would necessarily fall under PC 490.2. The path taken to get to the answer is a novel one.
VC 10851 criminalizes the non-consensual taking or driving of a car with an intent to deprive the owner of possession for any period of time. It also criminalizes being a party to the "stealing" of a car. Clearly one can violate 10851 without committing a theft, as theft requires an intent to permanently deprive the owner of possession. Taking a car for a one-hour joyride, fully intending to return the car, violates 10851. But auto theft also necessarily falls under 10851, as an intent to permanently deprive the owner of possession necessarily includes an intent to deprive temporarily. So a 10851 conviction may involve a theft, but needn't.
How then to reconcile 10851 with PC 490.2, which states,
[O]btaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor.When a 10851 is based on a car "theft" does it fall within 490.2? It would appear to apply; "shall" is mandatory language so any act which could encompass more than one crime would necessarily have to be considered and punished under 490.2.
The panel disagrees, for two reasons. The first reason is that the panel believes that by keeping the preexisting language of PC 666, which refers to "auto theft under 10851", "petty theft", and "grand theft" as separate qualifying convictions, the voters expressed their view that 10851 convictions are distinct from "theft" convictions. The second reason the panel gives for its decision is the "specific governs over the general" cannon.
The panel reasoning is not specious, but it doesn't really satisfy. The "surplusage" argument only works if the "auto theft under 10851" language in PC 666 is truly limited to those 10851 convictions involving an intent to permanently deprive. I was unable to find a published opinion addressing this issue. If the PC 666 language "auto theft under 10851" includes all 10851 convictions, then the panel's argument falls apart as including the 10851 language would not be meaningless under Solis' interpretation. It would function to include within 666 those 10851 convictions not involving theft.
The second argument of 10851 being a more specific statute is weakened by the mandatory language in 490.2 requiring that all thefts of property worth not more than 950 dollars "shall" be considered and punished as petty theft. This language leaves little wiggle room. Interestingly, the panel doesn't really address the mandatory language in 490.2. But the opinion is more thoughtful and scholarly than most Proposition 47 opinions.
Eventually the California Supreme Court will give us their final answer. But until that time, Ms. Solis will remain on felony probation.
Tuesday, March 22, 2016
P v. Aguilar (2nd Dist., Div.8) Having a Pistol in Your Car is a Crime of Moral Turpitude
Mr. Aguilar testified in his own defense at his trial. The trial court allowed the state to impeach Aguilar with his prior conviction for transporting a pistol in his car, PC 25400(a)(1). A jury convicted Aguilar and he appealed.
The Second District affirms, finding it was proper to allow the state to impeach Aguilar with his 25400(a)(1) conviction because having a pistol in your car is a crime of "moral turpitude", often defined as "a readiness to do evil" or "having lax morals".
For some fun, read this opinion and then read Justice Alito's concurrence in Caetano v. Massachussets and see if you find any common ground.
The Second District affirms, finding it was proper to allow the state to impeach Aguilar with his 25400(a)(1) conviction because having a pistol in your car is a crime of "moral turpitude", often defined as "a readiness to do evil" or "having lax morals".
For some fun, read this opinion and then read Justice Alito's concurrence in Caetano v. Massachussets and see if you find any common ground.
P v. Bush (4th Dist., Div.2) PC 368(d), As It Existed in 2002, Is Not an Eligible Offense For PC 1170.18 Relief
In 2002, Mr. Bush was convicted of, among other crimes, two felony counts of PC 368(d), theft from an elderly person, and three felony counts of PC 496, possession of stolen property. Following the November 2014 passage of Proposition 47, Bush petitioned the trial court to reduce the five above felony convictions to misdemeanors. The trial court denied the petition and Bush appealed.
A panel from the Fourth District affirms the denial as to the PC 368(d) counts, but reverses and remands as to the PC 496 counts for the trial court to reconsider those counts.
The opinion contains an indefensible analysis of PC 1170.18(a). This faulty analysis is erroneous on its face, is anachronistic, and casts doubt on the competence of certain members of California's Courts of Appeal.
Proposition 47 of 2014 resulted in converting to straight misdemeanors certain offenses that were formerly wobblers or straight felonies (with exceptions inapplicable here). It did this using two different methods. Method one was to simply amend the punishment for existing crimes. The crime of possession of a controlled substance is an example of this method. The second method (oversight of which is the basis for the panel's faulty analysis) was to create a new misdemeanor crime which necessarily encompasses criminal activity that would have formerly been felonious. Penal Code section 459.5, shoplifting, is an example. Proposition 47 carved out a subset of offenses that were formerly felony commercial burglaries and placed them within the new misdemeanor crime of shoplifting. With this in mind, consider the following language.
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. This panel's interpretation would render the 1170.18 references to 459.5 and 490.2 surplusage. 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, this opinion holds that only the following convictions are eligible for 1170.18 relief: PC 473, 476a, 496, and Health and Safety Code sections 11350, 11357, and 11377.
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.
In making this initial error of statutory interpretation, the opinion is immune to any further meaningful analysis. For the glare from this error, the reader is blinded. Fortunately, they aren't missing anything of value.
A panel from the Fourth District affirms the denial as to the PC 368(d) counts, but reverses and remands as to the PC 496 counts for the trial court to reconsider those counts.
The opinion contains an indefensible analysis of PC 1170.18(a). This faulty analysis is erroneous on its face, is anachronistic, and casts doubt on the competence of certain members of California's Courts of Appeal.
Proposition 47 of 2014 resulted in converting to straight misdemeanors certain offenses that were formerly wobblers or straight felonies (with exceptions inapplicable here). It did this using two different methods. Method one was to simply amend the punishment for existing crimes. The crime of possession of a controlled substance is an example of this method. The second method (oversight of which is the basis for the panel's faulty analysis) was to create a new misdemeanor crime which necessarily encompasses criminal activity that would have formerly been felonious. Penal Code section 459.5, shoplifting, is an example. Proposition 47 carved out a subset of offenses that were formerly felony commercial burglaries and placed them within the new misdemeanor crime of shoplifting. With this in mind, consider the following language.
A person currently serving a sentence for a conviction, whether by trial or plea, 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 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.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. This panel's interpretation would render the 1170.18 references to 459.5 and 490.2 surplusage. 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, this opinion holds that only the following convictions are eligible for 1170.18 relief: PC 473, 476a, 496, and Health and Safety Code sections 11350, 11357, and 11377.
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.
In making this initial error of statutory interpretation, the opinion is immune to any further meaningful analysis. For the glare from this error, the reader is blinded. Fortunately, they aren't missing anything of value.
Monday, March 21, 2016
Caetano v. Massachusetts (U.S. Supreme Court) A Stun Gun Is an "Arm" for Second Amendment Purposes
Ms. Caetano carried a stun gun in her purse to protect herself from an abusive ex. While police were investigating her for an alleged shoplift, Caetano encouraged the police to search her purse so they could see she hadn't stolen anything. The police didn't find any loot in Caetano's purse, but they did find the stun gun. In Massachusetts, possessing a stun gun is a crime punishable by up to 30 months in prison.
Caetano was charged with, and convicted of, possession of a stun gun. She appealed her conviction to Massachusetts' high court on grounds the statute proscribing the possession of stun guns infringed upon her Second Amendment right to "bear arms". Massachusetts affirmed Caetano's conviction, holding the Second Amendment doesn't apply to a stun gun. Caetano's petitioned the United States Supreme Court for a writ of certiorari.
The United States Supreme Court grants the petition, vacates the Massachusetts high court's decision, and remands the matter for further proceedings.
Massachusetts held a stun gun did not qualify for Second Amendment protection for three reasons. First, stun guns were not in common use in 1789, the year the Amendment was enacted. Second, stun guns are "dangerous and unusual" weapons, which are excluded from Second Amendment protection. Third, nothing suggests stun guns are readily adaptable to use in the military.
The main problem with the first and third arguments is that Heller pretty explicitly rejected both. The problem with the second argument is that Massachusetts supporting argument was just a naked restatement of argument number one.
The per curiam opinion is all of one and half pages. Justices Alito, joined by Justice Thomas, pens a mawkish concurrence which contains the statement, "[a] State’s most basic responsibility is to keep its people safe." This is a curious statement from a textualist/originalist, as I can find nothing in the Constitution to support it. It is also a bad choice of words as Massachusetts could probably argue her prohibition of stun guns was enacted with that "basic" goal in mind, keeping people safe.
What is not broached in this case is the issue of whether (or how far) the right of armed self-defense extends outside the home. Caetano was carrying her stun gun in public (as she was homeless, it was her only alternative) but this fact doesn't come into play given the controversy is limited to whether stun guns are entitled to Second Amendment protection. I may be wrong, but the silence on this issue seems to suggest a tacit acknowledgment that the Second Amendment protects carrying arms (to some extent) in public.
In California, Heller has been very narrowly interpreted to apply only to the possession of arms within the home. It is still a crime in California, absent a CCP, to carry a gun in your purse or even place your gun within your car's glove box. Reading Alito's concurrence, I am convinced he (and Thomas) would find both of these proscriptions unconstitutional. But this issue will be for another day.
Caetano was charged with, and convicted of, possession of a stun gun. She appealed her conviction to Massachusetts' high court on grounds the statute proscribing the possession of stun guns infringed upon her Second Amendment right to "bear arms". Massachusetts affirmed Caetano's conviction, holding the Second Amendment doesn't apply to a stun gun. Caetano's petitioned the United States Supreme Court for a writ of certiorari.
The United States Supreme Court grants the petition, vacates the Massachusetts high court's decision, and remands the matter for further proceedings.
Massachusetts held a stun gun did not qualify for Second Amendment protection for three reasons. First, stun guns were not in common use in 1789, the year the Amendment was enacted. Second, stun guns are "dangerous and unusual" weapons, which are excluded from Second Amendment protection. Third, nothing suggests stun guns are readily adaptable to use in the military.
The main problem with the first and third arguments is that Heller pretty explicitly rejected both. The problem with the second argument is that Massachusetts supporting argument was just a naked restatement of argument number one.
The per curiam opinion is all of one and half pages. Justices Alito, joined by Justice Thomas, pens a mawkish concurrence which contains the statement, "[a] State’s most basic responsibility is to keep its people safe." This is a curious statement from a textualist/originalist, as I can find nothing in the Constitution to support it. It is also a bad choice of words as Massachusetts could probably argue her prohibition of stun guns was enacted with that "basic" goal in mind, keeping people safe.
What is not broached in this case is the issue of whether (or how far) the right of armed self-defense extends outside the home. Caetano was carrying her stun gun in public (as she was homeless, it was her only alternative) but this fact doesn't come into play given the controversy is limited to whether stun guns are entitled to Second Amendment protection. I may be wrong, but the silence on this issue seems to suggest a tacit acknowledgment that the Second Amendment protects carrying arms (to some extent) in public.
In California, Heller has been very narrowly interpreted to apply only to the possession of arms within the home. It is still a crime in California, absent a CCP, to carry a gun in your purse or even place your gun within your car's glove box. Reading Alito's concurrence, I am convinced he (and Thomas) would find both of these proscriptions unconstitutional. But this issue will be for another day.
Friday, March 18, 2016
P v. Giron-Chamul (1st Dist., Div.1) Refusal of Child Witness to Answer Questions Violated the Right to Confrontation
Mr. Giron-Chamul, a master sergeant in the U.S. Air Force, was convicted for oral copulation upon his four-year old daughter and sentenced to life in prison.
At his trial, his daughter testified via closed circuit camera. She was unable to follow the judge's instructions, hid under a table, and refused to answer at least 150 questions. Of the questions she did answer, she admitted her mother (defendant's ex-wife) told her what to say, claimed that her father put his own penis in his mouth, molested her in front a a crowd of people, that she owned 2,000 Hello Kitty outfits, and that her father licked his own underwear.
Following his conviction, Giron-Chamul appealed. The First District reverses.
This is a thoughtful opinion written with little precedential guidance. The panel distinguishes cases where adult witnesses refuse to answer questions. When an adult evades questions, the panel argues, the purpose of cross examination is accomplished. A jury can be expected to question the credibility of an adult witness who refuses to answer relevant questions, conferring upon a defendant the benefit of cross-examination, letting sunlight fall upon the witness' story. With a child, however, such refusals are not likely to have the same effect; there are a myriad of reasons for a child to refuse to answer questions and the presumption that a jury will respond skeptically does not apply. Therefore Giron-Chamul did not have an opportunity to confront the witness against him.
Now the state has to decide whether to retry Master Sergeant Giron Chamul.
At his trial, his daughter testified via closed circuit camera. She was unable to follow the judge's instructions, hid under a table, and refused to answer at least 150 questions. Of the questions she did answer, she admitted her mother (defendant's ex-wife) told her what to say, claimed that her father put his own penis in his mouth, molested her in front a a crowd of people, that she owned 2,000 Hello Kitty outfits, and that her father licked his own underwear.
Following his conviction, Giron-Chamul appealed. The First District reverses.
This is a thoughtful opinion written with little precedential guidance. The panel distinguishes cases where adult witnesses refuse to answer questions. When an adult evades questions, the panel argues, the purpose of cross examination is accomplished. A jury can be expected to question the credibility of an adult witness who refuses to answer relevant questions, conferring upon a defendant the benefit of cross-examination, letting sunlight fall upon the witness' story. With a child, however, such refusals are not likely to have the same effect; there are a myriad of reasons for a child to refuse to answer questions and the presumption that a jury will respond skeptically does not apply. Therefore Giron-Chamul did not have an opportunity to confront the witness against him.
Now the state has to decide whether to retry Master Sergeant Giron Chamul.
P v. Smith (1st Dist., Div.4) Either Party is Presumptively Entitled to a Continuance of the Preliminary Examination to a Date Within the 10-Day
This is a decision unlikely to find much applause among trial court judges.
Mr. Smith pleaded not guilty to possession of heroin on February 24, 2014, and exercised his right to have a preliminary examination within 10 court days of his plea (so at the latest, March 10). The preliminary examination was set for March 6, 2014. On March 6, the state moved the court to continue the preliminary hearing to March 10 because the crime lab hadn't yet tested the alleged heroin. The magistrate, finding no good cause for a continuance, denied the state's motion and dismissed the case.
The state appealed and the First District reverses, holding the magistrate erred because the notice and good cause requirements of Penal Code section 1050 do not apply within the 10-day statutory period for a speedy preliminary hearing.
The panel analyzes the intersection of PC 1050, the statute governing continuances, and PC 859b, the statute governing the timing of preliminary hearings and the consequences of failing to adhere to these times. Importantly, 1050(k) states that 1050, which requires a party give notice and demonstrate good cause to receive a continuance, does not apply within the 10-day prelim period of 859b. The consequence is that either side is presumptively entitled to a continuance within the 10-day period. No notice required; no good cause required.
The reason for the introductory sentence above is that many mid-sized courts reserve specific days of the week to hold preliminary hearings. For example, a court may hear motions and hold sentencing hearings on Mondays, conduct jury trials on Tuesdays, Wednesdays, and Thursdays, reserving Fridays for preliminary hearings. As defendants are arraigned, by necessity, every day, inevitably the 10th day of the preliminary hearing period will not necessarily fall on a Friday. In the past, a magistrate would hold the parties' feet to the fire on "prelim day", not wanting to have to inconvenience a panel of jurors by making them wait while conducting preliminary examinations brushing up against the 10 day period.
Now, under this new rule, a magistrate cannot deny a continuance within the 10 day period, meaning they must necessarily cede control over more of their calendar to accommodate preliminary hearings within the 10-day period.
Mr. Smith pleaded not guilty to possession of heroin on February 24, 2014, and exercised his right to have a preliminary examination within 10 court days of his plea (so at the latest, March 10). The preliminary examination was set for March 6, 2014. On March 6, the state moved the court to continue the preliminary hearing to March 10 because the crime lab hadn't yet tested the alleged heroin. The magistrate, finding no good cause for a continuance, denied the state's motion and dismissed the case.
The state appealed and the First District reverses, holding the magistrate erred because the notice and good cause requirements of Penal Code section 1050 do not apply within the 10-day statutory period for a speedy preliminary hearing.
The panel analyzes the intersection of PC 1050, the statute governing continuances, and PC 859b, the statute governing the timing of preliminary hearings and the consequences of failing to adhere to these times. Importantly, 1050(k) states that 1050, which requires a party give notice and demonstrate good cause to receive a continuance, does not apply within the 10-day prelim period of 859b. The consequence is that either side is presumptively entitled to a continuance within the 10-day period. No notice required; no good cause required.
The reason for the introductory sentence above is that many mid-sized courts reserve specific days of the week to hold preliminary hearings. For example, a court may hear motions and hold sentencing hearings on Mondays, conduct jury trials on Tuesdays, Wednesdays, and Thursdays, reserving Fridays for preliminary hearings. As defendants are arraigned, by necessity, every day, inevitably the 10th day of the preliminary hearing period will not necessarily fall on a Friday. In the past, a magistrate would hold the parties' feet to the fire on "prelim day", not wanting to have to inconvenience a panel of jurors by making them wait while conducting preliminary examinations brushing up against the 10 day period.
Now, under this new rule, a magistrate cannot deny a continuance within the 10 day period, meaning they must necessarily cede control over more of their calendar to accommodate preliminary hearings within the 10-day period.
P v. Myers (3rd Dist.) The "Drafter" of Proposition 47, and Necessarily the Electorate Who Voted to Enact Prop 47, Erred.
Mr. Myers was previously sentenced to an indeterminate sentence under the old "two strikes and any felony" law. Following the 2012 passage of Proposition 36 and the November 2014 passage of Proposition 47, Myers petitioned the trial court for resentencing pursuant to PC 1170.126. The petition was denied and Myers appealed.
The central issue on appeal is the meaning of the phrase "unreasonable risk of danger to public safety" within PC 1170.126. When 1170.126 was added to the Penal Code, it provided no guidance as to what the phrase should mean, although it did enumerate particular factors courts could consider in determining whether the phrase was true in a particular case.
Two years later, PC 1170.18 was added to the Penal Code. It contains this:
As used throughout this Code, “unreasonable risk of danger to public safety” means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.The language is unambiguous; anywhere the phrase is found within the penal code, courts are to apply this definition. But the panel here doesn't like the result of the unambiguous language. So they conclude that the drafters of PC 1170.18 erred, that they meant to write "section" instead of "Code". To paraphrase the late Justice Scalia, "this is pure applesauce".
First, it is unctuous to suggest the "drafters" didn't know the difference between "code" and "section". Second, and more importantly, it doesn't matter what the "drafter" intended as the "drafter" lacks the ability to enact a law. Regardless of whether the "drafter" wrote what she intended, the lawmakers passed the act as written, not as a drafter subjectively intended. It is the intent of the lawmaker, not the drafter, that controls. A lawmaker casts her vote for or against the text presented, not some subjective intent of the "drafter".
For example, if a legislature passes a bill that states, "the maximum penalty for the crime of X shall be 11 years in the state prison", it is legally irrelevant that the person who wrote the bill intended to type "10 years" and their finger slipped to the "1". It is an affront to the lawmaker to suggest that her power to enact legislation is subordinate to the subjective intent of the person who drafted the legislation. In other words, if we assume the drafter really intended to type "10 years" in the above example, how can we conclude the lawmakers would have voted to enact that bill? Maybe they felt 10 years was too little. It is beyond arrogant and ultracrepidarian to decide not only that the drafter did not write what she intended, but that had she written what she intended, the electorate would have approved it. This is an actual example of legislating from the bench; not only rewriting a piece of legislation, but then, by judicial fiat, deciding for the electorate that they would have voted for the revised act.
The panel's remaining attempts to swaddle its judicial revision in specious supporting arguments are easily undone by the most basic of logic. The only arguments the panel can create all suffer from the same defect; they assume that which they seek to prove. Take the argument, "nothing in Prop47 evinced an intent to modify Prop36". This only works if you presume the "drafter's error". Taken at face value, Prop47 obviously intended to modify Prop36 because it explicitly and unambiguously did so. The same argument is reworded as, "Prop 36 and Prop47 have difference 'scopes'". Only if you are illiterate. If you read the text the voters enacted, they included Prop36 within the "scope" of Prop47 by directing that a phrase within 1170.126 be defined by a Prop47 statute.
Next, maybe not realizing some of us own thesauruses, the opinion next posits as a separate argument that Prop47 contains an expressed intent not to affect judgments outside the purview of Prop47. The problem is that "purview" is just a synonym of "scope". To say 1170.126 falls outside the purview of Prop47 requires the assumption that 1170.18 did not mean what it said when defining the phrase at issue. Someone should remind the panel that a baseless argument does not gain legitimacy by mere repetition. There is no cannon of logicae sequitur repition.
The reason the opinion has to resort to such jiggery pokery (RIP Antonin Scalia) is that the only legitimate judicial cannon that can justify the panel's decision is the doctrine of avoiding absurd consequences. "Absurd" means "wildly unreasonable and illogical". No doubt there are times when application of the doctrine is appropriate. For instance a statute reading, "any person found not to have committed burglary is to be sentenced to three years in the state prison", would be a good candidate for judicial revision (striking the word "not"). It would be illogical and ridiculous for the legislature to intend to punish all people who didn't commit burglary. But the text at issue here is not illogical nor wildly unreasonable.
After three readings, I am left wondering why this opinion was ordered published. It involves an issue pending before the California Supreme Court so its authoritative quality is non-existent. The opinion's primary effect is to emphasize the fallacious logic of a reflexive resort to the "drafter's error" doctrine. A secondary effect is to reinforce the notion that, in reality, judges often simply follow their own personal feelings about what the law should be and then attempt to disguise this reality with "judicial theories" and/or florid language. The judge who defers to legal deduction even when it rubs her wrong is, unfortunately, the rare exception.
To be fair, our analysis of the merit of a judge's decision is often just our own subjective reaction to the result. When we agree with the result, we say the judge was just following the law as written. When we disagree with the result, we say the judge is a judicial activist legislating from the bench. Here I believe the court of appeal legislated from the bench.
Thursday, March 17, 2016
P v. Juarez (Cal. Supreme Ct.) The California Supreme Court Provides (slight) Guidance on What Is Meant by "Same Offense" in PC 1387
November 2011, the state filed a complaint charging Mr. Juarez with two counts of attempted murder. July 2011, upon the state's motion, the trial court dismissed the case. Later the same day, the state refiled the same charges against Juarez. December 2012, this case was dismissed. The state then filed a complaint charging Juarez with two counts of conspiracy to commit murder.
Juarez moved to dismiss the conspiracy complaint under PC 1387, which prohibits subsequent filings for the "same offense" after two dismissals (subject to exceptions inapplicable here). A magistrate denied Juarez's motion to dismiss leading him to petition for a writ of habeas corpus in the Superior Court. The Superior Court judge granted the petition and dismissed the conspiracy case. The judge did not accept the state's argument that because conspiracy to commit murder was not the "same offense" or even a lesser included offense of the original attempted murder charges, PC 1387 did not bar subsequent filings, positing:
And it reverses.
Anyone looking for a clear holding of what is meant by "same offense" in PC 1387 will be disappointed. Rather the opinion tells lower courts to evaluate the phrase "same offense" using a rubric comprised of a case-by-case consideration of the policy goals of PC 1387, namely avoiding prosecutorial harassment, dissuading forum shopping, and preventing the evasion of a defendant's speedy trial rights.
Applying the rubric to Juarez, the opinion decides that the accusatory pleading test is tantamount to the policy goals above. Because in the accusatory pleading in the conspiracy case, one of the enumerated "acts in furtherance" is shooting and missing the targets, the conspiracy pleading is a necessary included offense of the dismissed attempted murder charges.
As to P v. Traylor, the opinion limits that holding to the facts considered therein, specifically the filing of a misdemeanor lesser after a dismissal following a preliminary examination on a greater felony.
Juarez moved to dismiss the conspiracy complaint under PC 1387, which prohibits subsequent filings for the "same offense" after two dismissals (subject to exceptions inapplicable here). A magistrate denied Juarez's motion to dismiss leading him to petition for a writ of habeas corpus in the Superior Court. The Superior Court judge granted the petition and dismissed the conspiracy case. The judge did not accept the state's argument that because conspiracy to commit murder was not the "same offense" or even a lesser included offense of the original attempted murder charges, PC 1387 did not bar subsequent filings, positing:
Where is the limit in regard to your theory of refiling? If we take assaultive conduct like attempted murder, you could have two dismissals for an assault with a deadly weapon, and then you could have two dismissals for an attempted vol[untary manslaughter], and then you could have two dismissals for assault by force likely to produce great bodily injury, and then you could have two dismissals for a [section] 243[, subdivision (d)] battery causing great bodily injury. Where would it end?The state appealed and the Court of Appeal reversed, holding that while it was uneasy with the result, it was obliged to follow the California Supreme Court's holding in P v. Traylor, 46 Cal. 4th 1205. The California Supreme Court granted review.
And it reverses.
Anyone looking for a clear holding of what is meant by "same offense" in PC 1387 will be disappointed. Rather the opinion tells lower courts to evaluate the phrase "same offense" using a rubric comprised of a case-by-case consideration of the policy goals of PC 1387, namely avoiding prosecutorial harassment, dissuading forum shopping, and preventing the evasion of a defendant's speedy trial rights.
Applying the rubric to Juarez, the opinion decides that the accusatory pleading test is tantamount to the policy goals above. Because in the accusatory pleading in the conspiracy case, one of the enumerated "acts in furtherance" is shooting and missing the targets, the conspiracy pleading is a necessary included offense of the dismissed attempted murder charges.
As to P v. Traylor, the opinion limits that holding to the facts considered therein, specifically the filing of a misdemeanor lesser after a dismissal following a preliminary examination on a greater felony.
Wednesday, March 16, 2016
P v. Valencia (3rd Dist.) The Legal Definition of "Shoplifting" is Found Within PC 495.5, Not the American Heritage Dictionary
June of 2014, Mr. Valencia strolled into an AT&T retail store and bought a $249.74 prepaid cell phone. An astute employee noticed the $50 bills Valencia used to pay for the phone looked strange. Valencia later admitted the bills were counterfeit.
Valencia was charged with commercial burglary, PC 459, and forgery, PC 470. He pleaded to the commercial burglary and received an eight month (1/3 of the midterm) sentence consecutive to another unrelated sentence. Following the November 2014 passage of Proposition 47, Valencia petitioned the trial court to reduce his 459 conviction to a misdemeanor under PC 1170.18. The trial court denied the petition. The court's reasoning is as follows: [1] PC 459.5 created a crime with the title of "shoplifting", [2] the definition provided for the crime of shoplifting is going into a store during business hours with the intent to commit larceny, [3] thus, the "larceny" within the statutory definition refers to the title, "shoplifting" as the term is commonly understood to mean going into a store to swipe merchandise off the shelf.
Without giving the trial court (deserved, IMEO) points for cynical judicial creativity, the Third District reverses.
The opinion is concise and, I assume, nearly wrote itself. The panel examines the statutory language within the relevant context, here the penal code. The penal code explicitly informs what it means by the term "larceny" in PC 490a.
Valencia was charged with commercial burglary, PC 459, and forgery, PC 470. He pleaded to the commercial burglary and received an eight month (1/3 of the midterm) sentence consecutive to another unrelated sentence. Following the November 2014 passage of Proposition 47, Valencia petitioned the trial court to reduce his 459 conviction to a misdemeanor under PC 1170.18. The trial court denied the petition. The court's reasoning is as follows: [1] PC 459.5 created a crime with the title of "shoplifting", [2] the definition provided for the crime of shoplifting is going into a store during business hours with the intent to commit larceny, [3] thus, the "larceny" within the statutory definition refers to the title, "shoplifting" as the term is commonly understood to mean going into a store to swipe merchandise off the shelf.
Without giving the trial court (deserved, IMEO) points for cynical judicial creativity, the Third District reverses.
The opinion is concise and, I assume, nearly wrote itself. The panel examines the statutory language within the relevant context, here the penal code. The penal code explicitly informs what it means by the term "larceny" in PC 490a.
Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.With this clear statutory directive, there is no need to trudge into the muck of extrinsic aids and policy considerations and the panel wisely avoids going there. The panel smartly does acknowledge that Valencia really intended to commit two crimes when he walked into AT&T. He intended to utter a forged document, PC 470, and intended to steal the phone, PC 484. However, since the forged item had a value of less than 950 dollars, it was not an intent to commit a felony. And absent an intent to commit felony forgery, Valencia's crime is not a commercial burglary. It is shoplifting.
Monday, March 14, 2016
P v. Hutton (5th Dist.) Release on "Sheriff's Parole" and Prior Prison Terms
Since I had no idea of the existence of "Sheriff's Parole", this opinion was an informative read.
In 2013, Mr. Hutton was convicted of felony possession of methylamphetamine. The trial court sentenced Hutton to four years in county jail consisting of three years on the meth charge and an additional one year for a prior prison term enhancement, PC 667.5(b). The sentence was "split" pursuant to PC 1170, meaning Hutton was to serve the first two years in the county jail and the remaining two years on the outs under mandatory supervision.
Just a couple of months after sentencing, well before completing the two year jail portion of his sentence, Hutton was released on "sheriff's parole", a form of county parole (distinct from mandatory supervision and AB 109 parole) authorized under PC 3074 et. seq.
While on sheriff's parole, Hutton was arrested for possession of a stolen car, PC 496d(a). A jury convicted Hutton and the trial court sentenced Hutton to five years, consisting of three years on the 496d(a) with two one-year prison priors, one of which was the meth sentence for which Hutton was on sheriff's parole at the time of his arrest. The sentence was ordered to run concurrent with the remainder of the meth sentence. The trial court denied Hutton any custody credits from the time of his 496d arrest until the time of sentencing on the theory that, even though Hutton has been released on sheriff's probation, he was still serving the custodial portion of his meth sentence and thus was ineligible to receive custody credits under PC 2900.5. Hutton appealed.
The panel confronts two interrelated issues; one, whether Hutton should have received custody credits beginning with his 496d arrest, and two, whether it was error for the trial court to count Hutton's meth sentence as a prison prior. The panel answers "yes" to the former and "no" to the latter.
The issue as to the former is whether sheriff's parole is a form of custody. The panel equates sheriff's parole to traditional parole, which is not considered custody. Therefore the prohibition of 2900.5 does not apply to Hutton. The answer to the latter issue hinges on whether Hutton had completed his meth sentence, as only completed sentences can be used to enhance a sentence under 667.5(b) as it read at relevant time. The panel again equates release on sheriff's parole to release on traditional parole, which has been held to constitute completion of a sentence for purposes of 667.5(b).
The practical result for Hutton is that he gets 265 additional custody credits.
In 2013, Mr. Hutton was convicted of felony possession of methylamphetamine. The trial court sentenced Hutton to four years in county jail consisting of three years on the meth charge and an additional one year for a prior prison term enhancement, PC 667.5(b). The sentence was "split" pursuant to PC 1170, meaning Hutton was to serve the first two years in the county jail and the remaining two years on the outs under mandatory supervision.
Just a couple of months after sentencing, well before completing the two year jail portion of his sentence, Hutton was released on "sheriff's parole", a form of county parole (distinct from mandatory supervision and AB 109 parole) authorized under PC 3074 et. seq.
While on sheriff's parole, Hutton was arrested for possession of a stolen car, PC 496d(a). A jury convicted Hutton and the trial court sentenced Hutton to five years, consisting of three years on the 496d(a) with two one-year prison priors, one of which was the meth sentence for which Hutton was on sheriff's parole at the time of his arrest. The sentence was ordered to run concurrent with the remainder of the meth sentence. The trial court denied Hutton any custody credits from the time of his 496d arrest until the time of sentencing on the theory that, even though Hutton has been released on sheriff's probation, he was still serving the custodial portion of his meth sentence and thus was ineligible to receive custody credits under PC 2900.5. Hutton appealed.
The panel confronts two interrelated issues; one, whether Hutton should have received custody credits beginning with his 496d arrest, and two, whether it was error for the trial court to count Hutton's meth sentence as a prison prior. The panel answers "yes" to the former and "no" to the latter.
The issue as to the former is whether sheriff's parole is a form of custody. The panel equates sheriff's parole to traditional parole, which is not considered custody. Therefore the prohibition of 2900.5 does not apply to Hutton. The answer to the latter issue hinges on whether Hutton had completed his meth sentence, as only completed sentences can be used to enhance a sentence under 667.5(b) as it read at relevant time. The panel again equates release on sheriff's parole to release on traditional parole, which has been held to constitute completion of a sentence for purposes of 667.5(b).
The practical result for Hutton is that he gets 265 additional custody credits.
P v. Franco (2nd Dist., Div.7) Within PC 473, Is the "Value" of a Forged Check the Face Value or the Actual Value?
In 2012, Mr. Franco was arrested with a forged check made out in the amount of 1500 dollars. He pleaded guilty to forgery and was given a go at felony probation. Franco then violated his probation. In late November of 2014, as he stood before the trial court awaiting sentencing, Franco asked the court to reduce his forgery conviction to a misdemeanor under Proposition 47. The trial court denied Franco's request and sent him to prison. Franco appealed.
The Second District affirms.
This is an irritating opinion. And not because of the result (which may prove to be correct). The irritation derives from the fact that this case presents a question of statutory interpretation which the panel responds to by eschewing the cannons of statutory interpretation in favor of a frowsy and baseless conclusion.
The question is simple, but by no means easy to answer. When PC 473 states that a "forgery relating to a check . . . where the value of the check . . . does not exceed nine hundred fifty dollars" is a misdemeanor, what does it mean by value? Does it mean market value (the amount someone will give you for it) intrinsic value (the value of the paper and ink), or face value (the dollar amount written on the check)?
A competent judicial analysis would start with examining the statutory language within the statutory scheme, giving the words their ordinary meanings, and determining whether the language is ambiguous. The panel skips (not just) this step and instead concludes without discussion or example that any interpretation other than face value would be absurd and is thus the correct interpretation.
There are many reasonable arguments, using the cannons of statutory interpretation, that support the panel's result. Why the panel was too faineant to mention them is head-scratching.
The question in this case is novel and deserves a quality published opinion. Unfortunately we will have to wait for one.
The Second District affirms.
This is an irritating opinion. And not because of the result (which may prove to be correct). The irritation derives from the fact that this case presents a question of statutory interpretation which the panel responds to by eschewing the cannons of statutory interpretation in favor of a frowsy and baseless conclusion.
The question is simple, but by no means easy to answer. When PC 473 states that a "forgery relating to a check . . . where the value of the check . . . does not exceed nine hundred fifty dollars" is a misdemeanor, what does it mean by value? Does it mean market value (the amount someone will give you for it) intrinsic value (the value of the paper and ink), or face value (the dollar amount written on the check)?
A competent judicial analysis would start with examining the statutory language within the statutory scheme, giving the words their ordinary meanings, and determining whether the language is ambiguous. The panel skips (not just) this step and instead concludes without discussion or example that any interpretation other than face value would be absurd and is thus the correct interpretation.
There are many reasonable arguments, using the cannons of statutory interpretation, that support the panel's result. Why the panel was too faineant to mention them is head-scratching.
The question in this case is novel and deserves a quality published opinion. Unfortunately we will have to wait for one.
Thursday, March 10, 2016
California Supreme Court Grants Review in P v.Buycks, P v. Gonzales, and Harris v. Superior Court
The California Supreme Court granted review in three cases upon which I recently blogged.
P v. Buycks will be reviewed on the issue of whether a felony reduced to a misdemeanor pursuant to PC 1170.18 still qualifies as a felony conviction for purposes of a crime-bail-crime enhancement. The case can be followed here.
Harris v. Superior Court will be reviewed to decide whether the State may, upon a successful PC 1170.18 petition by a defendant for a conviction that was part of a plea bargain, reinstate the charges dismissed as part of the plea bargain (aka the "benefit of the bargain" argument). Harris can be followed here.
P v. Gonzales will be reviewed to decide whether entering a check cashing store with the intent to commit theft by false pretenses meets the definition of PC 459.5. Follow the case here.
P v. Buycks will be reviewed on the issue of whether a felony reduced to a misdemeanor pursuant to PC 1170.18 still qualifies as a felony conviction for purposes of a crime-bail-crime enhancement. The case can be followed here.
Harris v. Superior Court will be reviewed to decide whether the State may, upon a successful PC 1170.18 petition by a defendant for a conviction that was part of a plea bargain, reinstate the charges dismissed as part of the plea bargain (aka the "benefit of the bargain" argument). Harris can be followed here.
P v. Gonzales will be reviewed to decide whether entering a check cashing store with the intent to commit theft by false pretenses meets the definition of PC 459.5. Follow the case here.
Tuesday, March 8, 2016
P v. Garcia (6th Dist.) A Grant of Felony Probation is a "Sentence" for Purposes of PC 1170.18 Relief
In 2013, Ms. Garcia pleaded guilty to felony possession of methylamphetamine, H&S 11377. Imposition of sentence was suspended and she was placed on a grant of felony probation. Following the November 2014 passage of Proposition 47, Garcia petitioned the trial court under PC 1170.18 to reduce her conviction to a misdemeanor.
The trial court denied her petition on the basis that to be eligible for 1170.18 relief requires one to be "serving a sentence" and as imposition of sentence had been suspended, Garcia was not actually serving a sentence. Garcia appealed.
The Sixth District reverses, finding Garcia was "serving a sentence" within the meaning of PC 1170.18. Although the Attorney General conceded the issue, the trial court's interpretation is not without a legitimate basis. Within certain statutes, California's courts of appeal have interpreted "sentence" to exclude a probation for whom imposition of sentence has been suspended.
However within the context of PC 1170.18, the panel holds otherwise and remands the case for the trial judge to reconsider Garcia's petition.
The trial court denied her petition on the basis that to be eligible for 1170.18 relief requires one to be "serving a sentence" and as imposition of sentence had been suspended, Garcia was not actually serving a sentence. Garcia appealed.
The Sixth District reverses, finding Garcia was "serving a sentence" within the meaning of PC 1170.18. Although the Attorney General conceded the issue, the trial court's interpretation is not without a legitimate basis. Within certain statutes, California's courts of appeal have interpreted "sentence" to exclude a probation for whom imposition of sentence has been suspended.
However within the context of PC 1170.18, the panel holds otherwise and remands the case for the trial judge to reconsider Garcia's petition.
Thursday, March 3, 2016
P v. Williams (2nd Dist., Div.2) PC 1170.18 Relief Will Not Operate to Negate a Previously Imposed PC 667.5(b) Enhancement
In 2013, Mr. Williams received a felony prison sentence that included a one year enhancement under PC 667.5(b) for a 2008 felony conviction for commercial burglary. While serving his sentence, Proposition 47 was enacted and subsequently Williams' 2008 commercial burglary conviction was reduced to a misdemeanor. Now Williams asserts his 2013 sentence should be reduced by one year because his 2008 burglary conviction is now a misdemeanor, and misdemeanors cannot enhance a sentence under PC 667.5(b). The trial court disagreed and denied Williams' request. An appeal followed.
The Second District affirms, joining the Fourth District (Carrea) and the Fifth District (Ruff).
The essence of the holding is that when the statute says a 1170.18 reduction is to be treated as a misdemeanor "for all purposes" what it really means is "for all purposes from this point on". The basis for the panel's holding is an argument by analogy from PC 17B, a statute conferring judicial discretion to reduce certain felonies to misdemeanors, which also contains the phrase "for all purposes". Cases construing 17B have held that a reduction under that section are only effective from the time of reduction onward.
Williams has some good arguments, though. The best is that the language is unambiguous. For all purposes should be interpreted to mean for all purposes, and any other interpretation is really just a judicial revision. The panel doesn't really know how to get around this argument, and rather disingenuously states that,
Williams also points out that, should you find ambiguity and go to the next step, the cannon of inclusio unius est exclusio alterius (express mention of one or more things of a particular class may be regarded as impliedly excluding others) supports his position. Section 1170.18, after stating the reduction is "for all purposes" goes on to state a specific exception, firearm possession. So applying the cannon, had lawmakers wanted to exclude 667.5(b) enhancements, they would have listed it alongside the firearm exclusion.
But in the end, the panel bypasses these points and it is the analogy to PC 17B that carries the day.
The Second District affirms, joining the Fourth District (Carrea) and the Fifth District (Ruff).
The essence of the holding is that when the statute says a 1170.18 reduction is to be treated as a misdemeanor "for all purposes" what it really means is "for all purposes from this point on". The basis for the panel's holding is an argument by analogy from PC 17B, a statute conferring judicial discretion to reduce certain felonies to misdemeanors, which also contains the phrase "for all purposes". Cases construing 17B have held that a reduction under that section are only effective from the time of reduction onward.
Williams has some good arguments, though. The best is that the language is unambiguous. For all purposes should be interpreted to mean for all purposes, and any other interpretation is really just a judicial revision. The panel doesn't really know how to get around this argument, and rather disingenuously states that,
Defendant urges that we depart from the general canon of statutory interpretation that points us to section 17’s interpretation and that we instead read the phrase “misdemeanor for all purposes” literally, giving effect to the lexical truism that “all means all” . . . The canon we cite above, like all interpretive canons, is merely a “guide”The reason this is disingenuous is that the Williams is not asking the panel to "depart from the general canon", rather Williams is asking the panel to rigorously follow the primary canon which is the test for ambiguity. The panel puts the cart before the horse, diving into policy, pragmatism, initiative history, etc. before looking to the words and giving them their ordinary meanings. Recall that without first finding ambiguity, resort to other materials is to be avoided. Thus the panel looks rather silly insinuating that textual analysis and assigning words their ordinary definitions is merely a "guide".
Williams also points out that, should you find ambiguity and go to the next step, the cannon of inclusio unius est exclusio alterius (express mention of one or more things of a particular class may be regarded as impliedly excluding others) supports his position. Section 1170.18, after stating the reduction is "for all purposes" goes on to state a specific exception, firearm possession. So applying the cannon, had lawmakers wanted to exclude 667.5(b) enhancements, they would have listed it alongside the firearm exclusion.
But in the end, the panel bypasses these points and it is the analogy to PC 17B that carries the day.
P v. Chen (2nd Dist., Div.8) Walking into the DMV Intending to Lie on Your License Application is Not Shoplifting
This is a strange opinion in that it lacks a useful statement of facts. We never find out Chen did, just with what he was charged and to what he pleaded.
The Second District reverses. The weakness in this opinion is that the panel appears to just assume the facts it needs to justify the holding, to wit, that the factual basis for Chen's plea was that he entered the DMV with an intent to lie on his license application. If the record reflects this, the panel erred in not mentioning it. All it mentions is the what you read above and based upon that I can't make any useful conclusions. Was count 1 related to count 2? They were alleged to have been committed on the same day, but did Chen make two different entries or just one? Count 2 alleges that Chen's intent was to "commit larceny and any felony", which clearly indicates Chen had the intent to commit larceny (and "any felony" which may or may not be a form of larceny). The panel dismisses this, confidently stating there was no larceny, no theft. Which may be true, but please explain upon what in the record of conviction you base this.
Without referencing the factual basis for the plea or evidence received at the 1170.18 petition hearing, the opinion appears sloppy and ultracrepidarian.
Hopefully it is neither and just appears that way due to an error of omission.
In January 2012, the People filed a criminal complaint charging Chen with two criminal charges, perjury in the application for a driver‟s license (count 1; § 118, subd. (a);) and second degree commercial burglary (count 2; § 459). Count 1 alleged that Chen failed to disclose that he had applied for, received, and used an Illinois driver‟s license under the name Yu Liu. As to count 2, the complaint alleged that Chen entered the Department of Motor Vehicles, “a commercial building,” with the intent “to commit larceny and any felony.Chen pleaded guilty to count 2 in consideration for dismissal of count 1. Following the November 2014 passage of Proposition 47, Chen petitioned under PC 1170.18 for his conviction to be reduced to a misdemeanor. The State opposed the petition arguing that because Chen's intent upon entering the DMV was to commit felony perjury, his PC 459 would not be a misdemeanor if committed today. The trial court granted Chen's petition and the State appealed.
The Second District reverses. The weakness in this opinion is that the panel appears to just assume the facts it needs to justify the holding, to wit, that the factual basis for Chen's plea was that he entered the DMV with an intent to lie on his license application. If the record reflects this, the panel erred in not mentioning it. All it mentions is the what you read above and based upon that I can't make any useful conclusions. Was count 1 related to count 2? They were alleged to have been committed on the same day, but did Chen make two different entries or just one? Count 2 alleges that Chen's intent was to "commit larceny and any felony", which clearly indicates Chen had the intent to commit larceny (and "any felony" which may or may not be a form of larceny). The panel dismisses this, confidently stating there was no larceny, no theft. Which may be true, but please explain upon what in the record of conviction you base this.
Without referencing the factual basis for the plea or evidence received at the 1170.18 petition hearing, the opinion appears sloppy and ultracrepidarian.
Hopefully it is neither and just appears that way due to an error of omission.
Wednesday, March 2, 2016
P v. Dobson (2nd Dist., Div.8) PC 1170.126 Doesn't Operate to Reduce the Maximum Confinement Time for NGI Hospital Patients
In 1998, Dobson was charged with stealing a car, VC 10851, and alleged to have suffered four prior strike offenses. A jury found Dobson not guilty by reason of insanity (NGI) and he was committed to the State Hospital for a maximum of 25 years to life, reflecting the maximum sentence under the two-strikes-and-a-felony law effective at the time.
Comes 2014, and Dobson files a petition under PC 1170.126 to reduce his maximum confinement time. The trial court denies his petition, finding that 1170.126 does not apply to NGI commitments, and Dobson appeals.
The Second District affirms.
The threshold issue is one of statutory interpretation. Section 1170.126 provides, in part.
Dobson tries a second-line argument of equal protection, but this is a weak argument, given the schism between the interests underlying the NGI commitment scheme and the interests of the criminal punishment scheme. The panel, with little surprise, finds the disparate treatment has a rational basis and rejects the argument.
Comes 2014, and Dobson files a petition under PC 1170.126 to reduce his maximum confinement time. The trial court denies his petition, finding that 1170.126 does not apply to NGI commitments, and Dobson appeals.
The Second District affirms.
The threshold issue is one of statutory interpretation. Section 1170.126 provides, in part.
(a) The resentencing provisions under this section and related statutes are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence.As the panel points out, this language is susceptible of only one reasonable interpretation. It excludes everyone except those serving a term of imprisonment. And Dobson is not serving a term of imprisonment, he has been civilly committed to a State Hospital and may be released at any time if he regains his sanity and passes a supervision period.
Dobson tries a second-line argument of equal protection, but this is a weak argument, given the schism between the interests underlying the NGI commitment scheme and the interests of the criminal punishment scheme. The panel, with little surprise, finds the disparate treatment has a rational basis and rejects the argument.
Tuesday, March 1, 2016
P v. Foy (1st Dist., Div.5) Robbery Conviction Reversed for Confrontation Clause Violation in Admitting Witness' Conditional Exam at Trial
Two men committed a robbery at a Jack in the Box restaurant. Unwisely, the robbers stole the victims' cell phones which were easily located using the "find my phone" application. . The police found a stolen phone inside the getaway car and arrested Foy nearby.
Prior to Foy's first trial, a conditional examination was taken of one of the victims because she lived in Connecticut and had been in California for a one-time event. At the first trial, which resulted in a mistrial, Foy didn't object to admission of the conditional exam. Foy did object at the second trial, but the trial court admitted the conditional exam. Foy was convicted and sentenced to 120-life.
The First District reverses for violation of Foy's right to confront his accuser under the Sixth Amendment to the U.S. Constitution.
The central issue is whether the witness was "unavailable" under the Constitutional standard. Specifically, did the prosecution use good faith efforts to obtain her attendance at trial? The prosecutor contacted the witness in Connecticut, but she didn't want to come back to California to testify. No attempt was made to secure her attendance using the Uniform Act (a interstate agreement to secure cross-state attendance of witnesses), despite both California and Connecticut being signatories. This was not enough, says the First District.
Because the witness was not unavailable, it violated Foy's confrontation right and the conviction is reversed.
Prior to Foy's first trial, a conditional examination was taken of one of the victims because she lived in Connecticut and had been in California for a one-time event. At the first trial, which resulted in a mistrial, Foy didn't object to admission of the conditional exam. Foy did object at the second trial, but the trial court admitted the conditional exam. Foy was convicted and sentenced to 120-life.
The First District reverses for violation of Foy's right to confront his accuser under the Sixth Amendment to the U.S. Constitution.
The central issue is whether the witness was "unavailable" under the Constitutional standard. Specifically, did the prosecution use good faith efforts to obtain her attendance at trial? The prosecutor contacted the witness in Connecticut, but she didn't want to come back to California to testify. No attempt was made to secure her attendance using the Uniform Act (a interstate agreement to secure cross-state attendance of witnesses), despite both California and Connecticut being signatories. This was not enough, says the First District.
Because the witness was not unavailable, it violated Foy's confrontation right and the conviction is reversed.
P v. Root (4th Dist., Div.1) Entering a Bank to Steal Less Than $950.01 by False Pretenses is Shoplifting, PC 459.5
Mr. Root walked into multiple banks trying to cash forged checks under 950 dollars. For this he was convicted of felony commercial burglary, PC 459. Following the passage of Proposition 47, Root returned to court seeking to reduce his convictions to misdemeanors under PC 1170.18. The trial court denied his petition and Root appealed.
The Fourth District reverses.
The opinion states the issues as whether theft by false pretenses qualifies as "larceny" for purposes of bringing a crime within PC 459.5, shoplifting. A previous post on People v. Vargas involved the identical issue. The answer is quite clear, it does. Penal Code section 490a states,
"[w]herever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor.So we read "larcency" as "theft" and ask what does "theft" include? According to PC 484, "theft" includes taking by false pretense. Thus, it doesn't take a logician to see that "larceny" includes theft by false pretenses.
P v. Bias (4th Dist., Div.2) Another Questionable Proposition 47 Opinion
Mr. Bias went into a bank to cash a 587 dollar check he had forged using a local business' account number. He was caught and charged with commercial burglary, PC 459, and forgery, PC 470. As part of a plea bargain, Bias pleaded guilty to the PC 459.
Following the passage of Proposition 47 in November 2014, Bias petitioned the trial court to reduce his PC 459 to a misdemeanor. The trial court granted his petition and the State Appealed.
The Fourth District reverses.
The issue is whether Bias' crime, if committed post-Proposition 47, would necessarily be a misdemeanor. This turns on whether Bias' crime falls under the crime of shoplifting, PC 459.5, which states;
The opinion finds that Bias' intent was to commit identity theft, PC 530.5, upon his entrance into the bank. It then proceeds (too hastily) to the conclusion that Bias' crime does not fall within PC 459.5 and is ineligible for PC 1170.18 relief. This analysis is incomplete.
First, the panel frames the question, incorrectly, as whether Bias entered the bank with the intent to commit identity theft or larceny. This is wrong. Obviously, Bias entered the bank with the intent to commit identity theft and larceny. He intended to go in the bank, submit the check to the clerk (identity theft) and then get his hands on 587 dollars of the bank's money to which he has no legal right (larceny-theft by false pretenses). You can even go a step further and correctly say Bias entered the bank with an intent to commit three crimes; pass a forged check (PC 470), unlawfully use the business' account number (PC 530.5), and commit larcency (PC 484). An astute law student could probably identify an intent to commit all of a half dozen additional crimes.
The real issue under these facts is whether the mandatory language of PC 459.5 requires, in the instance of multiple intents, the crime be charged under PC 459.5.
PC 459 is an unusual statute in that it invades an area that is usually left within the discretion of the prosecutor, the choice of which crime to charge. As California's penal code is unnecessarily voluminous, most criminal events involve more than one crime (as shown above). Traditionally, it was left to the prosecutor to determine which crime(s) to charge. However PC 459.5 removes this discretion and requires that any "[a]ct of shoplifting . . . shall be charged as shoplifting". This language implies that certain acts of shoplifting could be charged as other crimes (to mandate a particular outcome when only one outcome is possible would be excerebrose).
So the real question is, if Bias were to do the same thing today, whether a PC 459.5 charge would be required. If so, this opinion is wrong. If not, this opinion is correct. But because the panel never identifies the true question presented in this case, the answer will have to come another day.
Following the passage of Proposition 47 in November 2014, Bias petitioned the trial court to reduce his PC 459 to a misdemeanor. The trial court granted his petition and the State Appealed.
The Fourth District reverses.
The issue is whether Bias' crime, if committed post-Proposition 47, would necessarily be a misdemeanor. This turns on whether Bias' crime falls under the crime of shoplifting, PC 459.5, which states;
Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).
Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property
The opinion finds that Bias' intent was to commit identity theft, PC 530.5, upon his entrance into the bank. It then proceeds (too hastily) to the conclusion that Bias' crime does not fall within PC 459.5 and is ineligible for PC 1170.18 relief. This analysis is incomplete.
First, the panel frames the question, incorrectly, as whether Bias entered the bank with the intent to commit identity theft or larceny. This is wrong. Obviously, Bias entered the bank with the intent to commit identity theft and larceny. He intended to go in the bank, submit the check to the clerk (identity theft) and then get his hands on 587 dollars of the bank's money to which he has no legal right (larceny-theft by false pretenses). You can even go a step further and correctly say Bias entered the bank with an intent to commit three crimes; pass a forged check (PC 470), unlawfully use the business' account number (PC 530.5), and commit larcency (PC 484). An astute law student could probably identify an intent to commit all of a half dozen additional crimes.
The real issue under these facts is whether the mandatory language of PC 459.5 requires, in the instance of multiple intents, the crime be charged under PC 459.5.
PC 459 is an unusual statute in that it invades an area that is usually left within the discretion of the prosecutor, the choice of which crime to charge. As California's penal code is unnecessarily voluminous, most criminal events involve more than one crime (as shown above). Traditionally, it was left to the prosecutor to determine which crime(s) to charge. However PC 459.5 removes this discretion and requires that any "[a]ct of shoplifting . . . shall be charged as shoplifting". This language implies that certain acts of shoplifting could be charged as other crimes (to mandate a particular outcome when only one outcome is possible would be excerebrose).
So the real question is, if Bias were to do the same thing today, whether a PC 459.5 charge would be required. If so, this opinion is wrong. If not, this opinion is correct. But because the panel never identifies the true question presented in this case, the answer will have to come another day.
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