P v. Nice (6th Dist.) A Policeman's Estimation of a Car's Speed May Constitute Reasonable Suspicion of Speeding

Mr. Nice was a passenger in a car that a policeman estimated was doing 35-40 in a 25 zone.  The policeman pulled the car over.  The driver admitted to having done some meth and said there may be some meth in the car.  Searches of the car and a residence followed, yielding a substantial stash of drugs and a few guns.

After he was charged, Nice moved to suppress the drugs and guns alleging the policeman did not have reasonable suspicion the car was speeding.  At a hearing on the motion, the policeman testified he had

taken a 40-hour in-house speed radar estimation class and had probably completed at least a thousand speed estimations with or without radar during his 14 years as a police officer. His training and field experience included taking visual speed estimates while standing still, as well as while moving.

The trial court denied the motion and Nice appealed.

The Sixth District affirms.

Anyone looking to lawyers and judges for scientific or mathematical literacy must be prepared to be disappointed.  This case is no different.  Essentially the panel holds that because the estimation here was of a speed 40-60% greater than the speed limit, the estimate constitutes reasonable suspicion of speeding, distinguishing this case from a Fourth Circuit case where an estimate 7% over the limit was held not to constitute probable cause of speeding (note to police:  shoot high!).  

The true threshold question is whether it has ever been shown, by statistically valid data, that people can accurately estimate speeds visually, and if so, to what degree of error.  The proper question is not whether a particular policeman took a "40-hour in-house speed radar estimation class" (whatever "speed radar" is).  If a police department offers training for something, is that enough to establish the technique is worthy of consideration?  How about a 40-hour phrenology class?  An in-house training class in astrological crime detection?  If a policeman has taken a 400-hour class in estimating DNA matches by visual comparisons of a person and blood from an unknown source, and passes that class with an A+, shouldn't his estimation that the blood came from suspect Mr. A constitute probable cause to arrest Mr. A?

It's a good thing for the State that "visual estimation of speed" was not statistically tested.  A study in the Journal of Applied Social Psychology took a group of young US Air Force officers who had been trained to estimate speeds and subjected them to controlled testing.  The officers observed a car traveling at 12 mph and were asked to estimate the car's speed.  The estimates were from 10 mph to 50 mph, with a standard deviation of 10.2 mph.  A British study replicated these results.  

The other annoyance in judicial considerations of bogus police techniques is an excerebrose adherence to the specious principle that "experience" (repetition) equates to reliability.  That someone has estimated speeds over a thousand times is not the same as saying that person can do it with accuracy.  My neighbor has played various lotteries thousands of times, his ability to predict the numbers does not increase with each play.  Repetition of a technique which has not been demonstrated to be reliable does not establish statistical reliability, at least among the scientifically literate.

But alas our judiciary has no membership in that club.  

P v. Smith (4th Dist., Div.2) Delphic Denial of PC 1170.18 Reversed and Remanded

In January of 2011, Mr. Smith pleaded guilty to two counts of commercial burglary, involving a check cashing business and a Staples store, and one count of passing counterfeit bills, PC 476.  He admitted one prior strike conviction and six prior prison terms.  At sentencing, Smith received 13 year and 4 months in the state prison.

In 2014, two weeks after California's voters passed Proposition 47, Smith petitioned to reduce his three convictions to misdemeanors via PC 1170.18.  He used a form created by the local court.  The State filed a strange response stating that [1] Smith was eligible for the relief requested, and [2] requesting a hearing on whether a check cashing business is a commercial establishment.  

The trial court, sans a hearing, denied Smith's petition in its entirety.  The minute order from the denial stated only that PC 476 was not a qualifying offense.  The order said nothing about why relief was denied as to the burglary counts. Smith appealed as to these two commercial burglary counts.

The Fourth District reverses and remands the matter for the trial court to either grant the petition as to the burglary counts, or in the alternative, hold a hearing on whether the amounts at issue exceeded 950 dollars.

As to the check cashing count, since the State, in its request for a hearing, appeared to contest that such a business qualifies as a "commercial establishment", the panel confronts this issue.  It determines a check cashing business is a "commercial establishment" as it is a business engaged in the exchange of goods and services.  Finding the trial court could not have denied Smith's petition on this ground, the panel next entertains the State's assertion that Smith did not carry his burden of showing the amounts did not exceed 950 dollars.

The panel rejects this because in responding to Smith's petition asserting the amounts were less than 950 dollars, the State conceded that he was "eligible for the relief requested", a statement which necessarily includes a concession the amounts were eligible.  Since a court is not required to accept such a concession, the panel remands the matter for the trial court to determine whether there is a material dispute of the amounts involved and, if there is, hold a hearing.  

In a footnote, the panel also hints that Smith may wish to file another petition as to the PC 476 count as the Court of Appeal has held this crime may be eligible for PC 1170.18 relief.  

P v. Espino (6th Dist.) Policeman Mistakes a Diamond for Crack, Denial of Suppression Motion Reversed

Mr. Espino was doing 50 in a 35.  A policeman pulled him over.  Espino provided his license and registration.  The license was valid, registration was valid, and there were no warrants or wants for Espino.  However, Espino was a sex registrant.  The policeman had recently received information that although Espino was "technically" in compliance with his registration requirements, the police had been unable complete a "face-to-face"verification of his residence.  Additionally,  a confidential informant had told a fellow officer that Espino was slinging dope.  To guild the lily, a citizen riding along with the policeman thought he saw Espino make a "furtive" movement (the dashcam later showed this wasn't true).  

The policeman waited until two more officers arrived and then ordered Espino out of the car.  Espino got out and because he was fidgety and nervous, the police asked him for permission to search his pockets.  Espino consented and the police found a small crystalline object in his pocket.  Using their training and experience, they determined the item to be crack cocaine.  Espino was cuffed because the police thought he had committed a felony.  After a minute of expert visual analysis, the policeman realized the item was a diamond.  

By this time Espino had been ordered to sit on the ground, still in handcuffs.  The police now asked him for permission to search his car, which he provided.  Inside the car was some meth, a scale, and plastic baggies.  Based on this contraband, the police obtained a search warrant for Espino's home which turned up a pistol.  

Espino moved to suppress the meth, scale, baggies, and gun.  The trial court denied the motion.  Espino then took a deal for two years and eight months in prison.  He appealed.

The Sixth District reverses, holding that Espino's consent was not voluntary as it was given while he was the subject of an unlawful arrest.  

It should be said that whether or not you agree with the result, this panel knows how to conduct a proper Fourth Amendment analysis, unlike some in the Third District.  The initial detention here is fine as Espino was speeding.  The first real issue arises when the policeman prolongs the stop (Espino's license and registration were in order) to investigate the registration and drug suspicions.  Espino argues there was no reasonable suspicion of either of these to justify waiting for additional officers.  The panel disagrees, finding that while each individual fact alone doesn't amount to reasonable suspicion, taking them together satisfies the bill.

The next issue is whether, after finding the diamond, Espino was arrested.  The panel answers "yes".  The State argues that handcuffing alone does not always constitute an arrest.  This is true.  But what the State fails to mention is that handcuffing does not constitute an arrest when it is reasonably necessary to safely effect a Terry stop.  Here it was not; Espino posed no threat and the police outnumbered him three to one.  Since handcuffing was not reasonably necessary to conduct a Terry stop, it was an arrest.  

The arrest was legal at its inception since the police thought they found crack cocaine.  However, once the police realized it was a diamond, the arrest became unlawful.  Instead of uncuffing Espino after they realized their mistake, the police continued to grill him and asked him for his consent to search the car.  Because the consent was given during this illegal arrest, it was involuntary.  There is no good faith because the police admitted they knew the item wasn't anything illegal.

The best part about this opinion is that the panel puts the kibosh on a ridiculous argument the State has been advancing for years.  The argument is as follows: a driver stopped for speeding may be arrested for that offense without violating the Fourth Amendment; therefore, even if the driver is not arrested for speeding, any subsequent prolonged detention, arrest upon another crime for which there is no probable cause, or other unjustified detentions are just fine because the police could have arrested the driver for speeding at the outset.  In other words, because a policeman could, without violating the Fourth Amendment, arrest a speeder, taken him to jail, strip-search him, and hold him in jail for 48 hours before taking him before a magistrate, any less intrusive seizure for another offense, even if legally unjustified, must also not violate the Fourth Amendment.

The panel points to the recent United States Supreme Court's decision in Rodriguez v. United States (2015) 135 S.Ct. 1609.  Rodriguez was pulled over for a traffic violation.  After writing out a warning, the police continued to detain him until they could get a drug dog to the scene.  The High Court held that the detention was unreasonably prolonged as there was no reasonable suspicion to justify a continued detention after the warning was issued.  Our panel adroitly points out that the reasoning in Rodriguez makes no sense if it accepts the reasoning of Ms. Harris' minions.  

P v. Aleman et. al. (2nd Dist., Div.2) Murder Convictions Affirmed

Mr. Aleman and his codefendant, Mr. Medrano, were ratted out by a mutual friend and Medrano's babymamma.  The result of this rodent infestation was that both men went down for first degree murder, along with other crimes.  They appealed their convictions.  

The Second District affirms.

I do not know why this opinion was ordered published.  Not that it is defective in any way, but IMEO there is really nothing new here.  The initial issue involves a series of Batson challenges which are not novel, simply a prosecutor excusing prospective black and latino jurors who said things that could be taken as pro-defense.  This gives way to allegations of erroneous evidentiary rulings involving a writing that was admitted by the defense (over the State's objection), which the panel quickly dispatches under the doctrine that a party may not invite error.  

The final issue is whether Aleman was correctly convicted and sentenced of both first degree murder and attempted murder of the deceased.  Since the evidence showed Aleman walked up to the victim's car and fired, and then, after the victim drove off, Aleman walked to his friends truck and took off after the victim, eventually firing the fatal shots two miles down the road, he was properly convicted and sentenced for both crimes.

P v. Robinson (Cal. Supreme Ct.) PC 243.4(e)(1) Isn't a Lesser Included Offense of PC 243.4(c)

Mr. Robinson was accused of luring women into his salon with promises of free facials and modeling opportunities, only to grope their breasts and pudenda.  Robinson was convicted of, among other crimes, violating PC 243.4(c) as to four different women.  Section 243.4(c) criminalizes touching someone else's intimate parts, with a sexual intent, while the victim is unconscious of the nature of the act because the perpetrator fraudulently represented the touching served a professional purpose.

Robinson appealed.  In the Court of Appeal, the State conceded that there was insufficient evidence that two of the four women were "unconscious of the nature of the act because the perpetrator fraudulently represented the touching served a professional purpose" because they never actually believed Robinson's bogus story that his groping served some professional purpose.  The Court of Appeal accepted the concession, reversed the 243.4(c) convictions as to those two victims, and using PC 1181 sub(6) reduced the 243.4(c) convictions as to these two victims to convictions under 243.4(e)(1).  Section 243.4(e)(1) criminalizes the touching of someone's intimate parts for a sexual purpose without the victim's consent.  The Court of Appeal found that 243.4(e)(1) was a lesser included offense of 243.4(c).

The California Supreme Court granted review and reverses.

The ultimate issue is whether the Court of Appeal erred in modifying the jury's verdict under PC 1181(6).  Section 1181(6) allows a court to modify a jury verdict that is unsupported by evidence to find a defendant guilty of a lesser included offense.  Thus the Court frames the threshold issue as whether 243.4(e)(1) is a lesser included offense of 243.4(c).  

This threshold issue requires determining whether ""unconscious of the nature of the act because the perpetrator fraudulently represented the touching served a professional purpose" is tantamount to "lack of consent"?  The opinion answers the question, "yes".  The opinion finds that the legislature created 243.4(c) with the purpose of equating fraud-in-the-inducement with lack of consent.  At common law fraud in the inducement (using misrepresentation to gain someone's consent) resulted in valid consent.  This meant that if a person used fraud to obtain someone's consent, they could not be found guilty of crimes such as rape and sexual battery which have an element of "lack of consent".  The Court finds the legislature intended to close this common law loophole with a statutory declaration that "lack of consent" includes fraud in the inducement.    

After finding 243.4(c) contains an element of "lack of consent", the Court then tackles the question of whether 243.4(e)(1) is a lesser included offense of 243.4(c).  The answer is "no", but not because 243.(e)(1) does not contain all the elements of 243.4(c), it does.  Rather the Court holds that when "the same evidence is required to support all the elements of both offenses, there is no lesser included offense[]".  In other words, if the evidence fails to satisfy all the elements of 243.4(c), the evidence is insufficient to satisfy the elements of 243.4(e)(1).  

It helps to remember that the "lack of consent" element in 243.4(c) is actually a narrow subset of all types of "lack of consent".  When the State charges 243.4(c) the jury is asked to decide whether there was a lack of consent due to fraud, not whether there was a lack of consent.  As the jury was not asked the broader question, they made no factual findings as to that broad question.  

Modifying a jury verdict under PC 1181(6) involves only applying established law to the facts found by the jury.  Since the jury made no factual findings as to a lack of consent under any theory apart from fraud, there are no jury-found facts upon which the Court of Appeals could hang a 243.4(e)(1).  The result is that those counts are reversed.  

IMEO, it was unnecessary for the court to decide whether 243.4(e)(1) is a lesser included offense of 243.4(c).  Because the jury verdict did not include factual findings sufficient to support a 243.4(e)(1), whether or not it was a lesser is moot.  Either way the Court of Appeal erred.  

P v. Arendtsz (2nd Dist., Div.5) A Trial Court Hasn't a Duty to Advise a Defendant of Possible Immigration Consequences Beyond Those In PC 1016.5

In 2006, Mr. Arendtsz pleaded guilty to sexual battery, PC 243.4.  Before Arendtsz pleaded, the prosecutor twice asked him if he understood that pleading guilty to this crime "will result in your deportation" and twice Arendtsz answered "yes".  

Come 2015 and Arendtsz files a motion to withdraw his 2006 plea under PC 1016.5, stating he was never informed that pleading guilty would subject him to mandatory deportation.  The trial court denied the motion and Arendtsz appeals.

The Second District affirms.

I am not sure why this opinion was ordered to be published.  Maybe it's because Arendtsz makes some novel arguments (required since the advisement given was more specific than required under 1016.5), the repetition of which the panel wants to prevent. 

It bears repeating that if you are an alien criminal defendant, hiring a competent immigration attorney before you plead guilty will be money well spent.  

P v. Silva (3rd Dist.) Failure to Comply With PC 1192.5 When Imposing a Sentence Greater Than That in Plea Agreement Requires Remand

Mr. Silva assaulted a worker from the power company and, while out on bail for the assault, threatened a couple of Walmart workers who had caught him shoplifting.  The end result was a complaint charging eight felonies, a prior strike, an "on-bail" enhancement, and multiple "nickel priors" (five year enhancements).

Silva and the state worked out a plea bargain.  Silva would plead guilty to one felony count of assault-with-a-deadly weapon (ADW), one felony count of making a criminal threat, one felony count of willfully failing to appear in court, and one misdemeanor count of petty theft.  He would also admit the prior strike and the "on bail" enhancement.  In return the state agreed it would dismiss the balance of the complaint.  Rather than agree to a specific sentence, Silva and the state agreed that Silva would receive no more than six years and eight months in prison.  The opinion describes this as a "lid" agreement.

At the time of sentencing, the court sentenced Silva to four years on the ADW, a consecutive 16 months sentence for the criminal threat, and an additional 16 months sentence on the failure to appear, for a total of six years and eight months.  However, there was still the misdemeanor petty theft, for which the court determined it was required to impose a consecutive sentence.  The court gave Silva 30 days consecutive on the misdemeanor.  This meant the total sentence ended up being six years and nine months.  Silva appealed.

The Third District (unhappy with the state, in my opinion) reverses and remands. 

The first problem the panel finds is that the trial court did not comply with Penal Code section 1192.5.  This section requires that at the time a defendant pleads the court must explain to him that a plea agreement is a compromise between the state and a defendant, the court is not a party to the agreement and thus is not bound by it.  If the court takes a plea pursuant to a plea bargain and later determines it cannot in good conscience follow the terms, it must inform the aggrieved party that it has the right to rescind the deal and pick up where the case left off.  

Here, the court did not explain to Silva when it determined it could not sentence him within the six year eight month "lid" that Silva had the right to withdraw his guilty pleas and resume the case as if those pleas had never been entered.  

IMEO, the panel is rightfully miffed at having its time wasted.  First, the prosecutor had assured the trial court at the time Silva entered his plea that the six month eight month "lid" was mathematically possible.  Second, when the prosecutor later discovered that the misdemeanor count would require a consecutive sentence (meaning the "lid" was not mathematically possible), he or she refused to just dismiss the misdemeanor, which would have solved the problem.  

In the end, the panel remands the matter where [1] the state can just dismiss the misdemeanor and the court can impose a six year eight month sentence, [2] if the state refuses to dismiss the misdemeanor, the court can exercise its discretion to impose a sentence under the six year eight month "lid", or [3] if both the state and the court hold their lines, Silva can be given the option of withdrawing his pleas and the case will resume as if the plea bargain never existed.  

P v. Vasquez (4th Dist., Div.2) Penal Code Section 1170.18 Does Not Give a Court the Power to Vacate a Completed Sentence

Back in 1995, Mr. Vasquez was convicted of felony petty theft with a prior and sentenced to 16 months in the state prison.  Vasquez did his time and was released.  

Come 2015, Vasquez returns to court and petitions for relief under Penal Code section 1170.18, a statute added by 2014's Proposition 47.  Section 1170.18 allows some people who are currently serving a sentence for a felony committed before November 5, 2014, that would have been a misdemeanor if convicted after November 5 (such as petty theft with a prior), to have their felony sentences recalled, have the crime declared a misdemeanor, and be resentenced as a misdemeanant.  Section 1170.18 also allows such people who have already completed their felony sentence to return to court and have their conviction declared a misdemeanor.  

Vasquez had already completed his sentence when he petitioned for relief.  But he asked the trial court, in addition to declaring his conviction a misdemeanor, to vacate his 16 month prison sentence.  The trial court agreed that Vasquez was entitled to have his case declared a misdemeanor and did so.  However the trial court disagreed that it had the jurisdiction to recall Vasquez's completed 16 month sentence and refused to do so.  Vasquez appealed.

A Fourth District panel affirms.  

To those unfamiliar with the intersection of state criminal law and federal immigration law, the issue may seem without consequence.  However, the consequence to Vasquez (and many others) looms large.  Immigration law specifies certain categories of criminal offenses that make a person removable from, or inadmissible to, the United States.  One of the criteria used to categorize criminal offenses is the maximum sentence under state law.  Generally, but not always, crimes punishable by one year or more have more severe immigration consequences than those punishable by less than one year (thus the reason California reduced the maximum penalty for misdemeanors from 365 days to 364 days).  

So while Vasquez has been out of prison for nearly 20 years, it may matter greatly how the immigration courts view the length of his sentence.  

But the consequences to Vasquez are not really the issue being decided by the panel.  The issue is whether section 1170.18 gives a trial court the power to vacate a completed sentence over which, under common law, the court would have no jurisdiction.  This panel answers "no".  The analysis is a pretty straight forward textual examination.  Section 1170.18 really doesn't say anything about recalling or vacating a sentence already served.  That language is confined to the subsections dealing with persons currently serving their sentences.  The panel appears somewhat sympathetic to Vasquez's situation, but without any tools (other than sympathy) to find the lawmakers intended to give trial courts such power, they decline to do so.

Vasquez really only has one decent argument and that involves the language that all cases reduced to misdemeanors (whether currently serving or having completed a sentence) are deemed to be misdemeanors "for all purposes".  He argues that the phrase "for all purposes" should include the federal immigration statutes.  But the panel, stating Vasquez's immigration matter is not before them, declines to adopt this reasoning.  

The only other argument I can think of that could have been made was that if Vasquez's crime is now a misdemeanor, his prior 16 month sentence would constitute an illegal sentence.  And I believe courts are always within their jurisdiction to correct an illegal sentence.  But this probably wouldn't have gotten far since the sentence was legal when it was imposed.  

I am sure this issue will make its way to the Ninth Circuit in due time.

In re Johnson (1st Dist., Div.4) Retroactive Application of Chiu Requires Reversal

After a group of thugs had beaten the victim unconscious, Mr. Johnson arrived on the scene and asked the thugs for a gun so he could kill the victim.  When the thugs did not provide him a gun, Johnson and the thugs beat the victim about the head, stabbed him in the neck, and placed a milk crate over the victims neck and stepped on it.  The victim died of blunt trauma to his head.

Johnson was tried for first degree murder.  The state advanced three different theories of culpability.  First, that Johnson was guilty of first degree murder because he premeditated the killing.  Second, even if Johnson didn't premeditate and deliberate the killing, he did enter into a conspiracy with the thugs to assault the victim with first degree murder being a natural and probable consequence of the assault.  Third, Johnson aided and abetted the assault of the victim with first degree murder being a natural and probable consequence of the assault.

The state argued all three theories and the trial court instructed on all three theories.  A jury found Johnson guilty of first degree murder and conspiracy to commit assault.  Johnson appealed his conviction and on appeal the First District affirmed.

Following the 2014 decision in P v. Chiu, 59 Cal. 4th 155, Johnson petitioned for a writ of habeas corpus.  Now the First District grants Johnson's petition and reverses his first degree murder conviction.

In Chiu, the California Supreme Court held that the "natural and probable consequences" doctrine of derivative liability does not apply to first degree murder.  Further the court said that when a trial court instructs on two theories of liability, one valid and one invalid, reversal is required unless the court can determine beyond a reasonable doubt that the jury based its verdict on the valid theory.

Here the trial court instructed, and the prosecution argued, three bases of liability.  Two turned out to be invalid and one valid.  Given the evidence, the panel cannot tell upon what theory, or theories, the jury based its verdict so reversal is required.  The people can now either retry Johnson on the first degree murder charge or accept a conviction for second degree murder.  

P v. McEntire (5th Dist.) Grabbing the Handle of a Sliding Glass Door When the Outer Sliding Screen Door is Open Is an "Entry" Under PC 459

While the lady of the house was getting some kip on her couch, Mr. McEntire snuck into the backyard.  The backyard entrance to the home was via two sliding doors, an exterior sliding screen in front of a glass sliding door.  The exterior sliding screen door was slid aside prior to McEntire sneaking into the backyard.  The lady awoke and saw McEntire standing at her back door, trying to open the sliding glass door.  She grabbed her dog, ran out her front door, and called 911.  While outside, she heard glass break.

Soon after, McEntire and his driver/lookout were arrested and identified as the burglars.  McEntire had smashed the sliding glass door and rifled around the house.  For this he was convicted of, among other crimes, residential burglary with an enhancement for a person being present during the burglary.  He appealed.

A Fifth District panel affirms.

The sole issue in the published portion of the opinion is whether there was sufficient evidence to support the "person present" enhancement.  Recall the resident had already fled her home before McEntire smashed the sliding glass door.  All McEntire did while the resident was still inside was to try, unsuccessfully, to pull open the sliding glass door using the handle.  For the enhancement to apply, McEntire must have made entry while someone was home.  The state argues that "entry" occurred when McEntire stuck his hand through the threshold of the open sliding screen door, such that the burglary was completed while the lady was still home.

The panel agrees.  It is an issue that arrives with a little guidance.  In P v. Nibble, a burglar used a screwdriver to pry out a window screen, at which time he was caught before he could start upon the glass pane.  The California Supreme Court affirmed the burglary conviction announcing the rule that "entry" is to be interpreted as breaching any threshold that a resident would have a reasonable expectation that a member of the public could not pass without authorization. 

If there is a flaw in the opinion its that the facts here are not really analyzed using this rule, instead supposing that which the rule requires proving without explanation.  Maybe this was the point, as there is a non-specious argument that a resident wouldn't really believe the public needed authorization to touch the sliding glass door when the screen door is open.  If my neighbor comes by to invite me over for coffee and my screen door is in the open position, I do not think I expect her to refrain from rapping on the glass door (which requires breaking the imaginary plane at issue) to see if I am home.  How else would a resident expect a caller make themselves known if the sliding screen door was open?

What if the screen door had been removed?  Is sticking your hand past an imaginary plane that a screen door would occupy an entry?  Could it reasonably be said this intangible plane is something a homeowner would not expect a visitor to breach without authorization? 

But to be fair to the panel, this was a patio door leading to the backyard.  Which is where most sliding glass doors are found.   Perhaps people have a reasonable expectation that given the less public nature of a backyard entrance, a member of the public would not touch the glass door without permission.  

P v. Herrera (2nd Dist., Div.6) Erroneous Prohibition of Defendant's Mental Health Expert Is Prejudicial.

Mr. Herrera stabbed his friend 21 times, killing him.  Herrera admitted killing his friend, but claimed he did so in a rage of self defense after his friend reached for a knife after Herrera had rejected his friend's sexual advances.  

Herrera presented evidence that he had been molested by his dance-team coach (who had been convicted of same as to other boys) at least 200 times beginning when he was eight and ending when he was eleven.  He had also been plied with alcohol then raped at age 15 by a 25 year old.  Herrera had tried to top himself thrice in the past before getting medical help for post traumatic stress disorder (PTSD).  

At trial, Herrera had a mental health expert, Dr. Kaser, testify on his behalf.  Prior to Dr. Kaser testifying, the trial court ruled that Dr. Kaser could not "testify as to anything related to mental state at the time of the offense".  Subsequently, the doctor testified that Herrera suffered from PTSD and major depressive disorder.  She testified that PTSD can result in a peritraumatic dissociative state (PDS).

When Herrera asked Dr. Kaser whether she believed Herrera was in a PDS on the day he killed his friend, the trial court sustained the state's objection.  Likewise when Herrera asked the doctor whether Herrera suffered from PTSD  and whether Herrera was psychiatric impaired the day of the killing.  The jury convicted Herrera of first degree murder.  He appealed.

A panel from the Second District reverses in a 2-1 ruling.

The issue is whether the trial court committed a prejudicial error when it ruled Dr. Kaser could not testify as to anything related to Herrera's mental state on the day he killed his friend.  California Evidence Code sections 28 and 29 prohibit mental health experts from testifying as to specific matters.  Whether those prohibitions apply to the testimony excluded here forms the controversy.  

Section 28 prohibits "[e]vidence of mental disease, mental defect, or mental disorder . . . to show or negate the capacity to form any mental state . . . [such] is admissible solely on the issue of whether or not the accused actually formed a required [mental state]". 

Section 29 prohibits "any expert testifying about a defendant's mental illness, mental disorder, or mental defect" from discussing "whether the defendant had or did not have the required mental states ... for the crimes charged." 

The majority reads the prohibitions narrowly, agreeing with P v. Cortez (2011) 292 Cal App 4th 873.  While an expert cannot discuss whether a defendant had or did not have a specific mental state, there is nothing improper about testimony as to a defendant's mental illness and what the symptoms of that mental illness may be.  Actually a defendant has a right to introduce such testimony as part of a defense that he did not have the required intent for the charged crime(s).  Per the majority, an opinion as to whether Herrera was suffering from PTSD or in a PDS was not tantamount to an opinion as to whether Herrera premeditated and deliberated the killing.  As long as the testimony steers clear of opining as to Herrera's mental state, evidence as to his mental illness and symptoms common to those illnesses is not prohibited by Section 29.

The dissent doesn't like P v. Cortez and doesn't follow it.  It equates testimony as to Herrera's mental health on the day in question with an opinion that Herrera did not possess the required mental state.  This seems a stretch absent testimony that persons suffering from PTSD lack the capacity to form the required mental state (violating Section 28) or that Herrera, because of his PTSD, did not form the required mental state (violating Section 29).  But I leave it to you to judge for yourself the validity of the dissent's characterization of the proferred evidence as an identity to the prohibited opinions.

P v. Iniguez (LA Appellate Division) PC 647(j)(4), Revenge Porn Statute, is Constitutional

Mr. Iniguez was dumped by his girlfriend, Jennifer.  Unfortunately he was unable to move on and began to harass Jennifer, who responded by obtaining a restraining order barring Iniguez from contacting her.  This made little difference to Iniguez who began posting thinly veiled messages to Jennifer's employer's facebook page, which Jennifer maintained as part of her job.  Along with the messages, Iniguez also posted a picture of Jennifer's bare breasts that he had taken (with her permission) when they were dating.

Iniguez was charged with and convicted of violation of the restraining order, PC 273.6, and "revenge porn", PC 647(j)(4).  He appealed and the appellate division of the L.A. Superior Court affirms.

This is an indefensible opinion, at least as to the First Amendment analysis.  The panel doesn't consider, or even mention, that the statute involves content discrimination, viewpoint discrimination, and speaker discrimination.  The words "strict scruntiny" appear nowhere.  Citations are made to cases that do not remotely stand for the propositions asserted.  Without citation to any authority the panel asserts that preventing the hurt feelings of people who allow themselves to be photographed constitutes a compelling state interest.  If a first year law student wrote such drivel, she would find herself retaking Constitutional Law I.  

If you desire a competent analysis of whether revenge porn statutes are constitutional, read this law review article.  

P v. Wade (California Supreme Court) Carrying a Backpack Containing a Gun Constitutes Carrying a Gun on Your Person.

Mr. Wade was carrying a backpack which contained a loaded pistol.  Wade was charged with violating Penal Code Section 25850, subdivision (a): “A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person . . . ."

After a holding order was made, Wade successfully moved to set aside the information on the basis the gun was not "on his person".  The state appealed and the Court of Appeal reversed.  The California Supreme Court granted review and affirms the Court of Appeal.

A unanimous court rejects Wade's argument that while he was "carrying" the gun, he wasn't carrying the gun "on his person", rather he was carrying it in his backpack.  The opinion is written by Justice Chin who has been cursed with the ability to consistently condense two paragraphs of legal reasoning into 13 pages of legal writing.  In the present case, the holding is essentially that when a backpack is on your person, everything inside that backpack is on your person.  Which is a reasonable holding.

But it is not Justice Chin's style to stop when he is ahead.  Instead, in a futile attempt to be complete, he goes off on ill-advised larks that are unable to withstand even rudimentary criticism.  

Here the ill-fated lark is his use of out-of-state opinions interpreting out-of-state laws as succor for his thirst to determine the California legislature's intent.  Out-of-state opinions can undoubtedly be useful for certain purposes: analogy and determining the workability of a particular interpretation both come to mind.  The one thing for which they can never be useful (especially in this case), is to determine the intent of the California legislature.  Especially when the opinions examined are issued after the California legislature passed the statute at issue. But one of the benefits of being the highest court is that you can assert with judicial impunity that members of the 1967 California legislature were somehow influenced by the 1991 Alaska Supreme Court.

Or maybe Justice Chin forgot to mention the 67' legislature had access to a Tardis.   

P v. Roach (1st Dist., Div.5) PC 1170.18 Relief Does Not Require a Court Impose a Shorter Sentence

Prior to November 5, 2014, Mr. Roach pleaded guilty in three felony cases.  In sum, he pleaded to: H&S 11377(a), PC 496(a), PC 12021(a)(1), and VC 2800.2.  When it came time for sentencing, the trial court imposed an effective total sentence of four years and four months, via the following.

           Principal Term  11377(a)    ----   3 years
           Subordinate 12021              ----   8 months consecutive
           Subordinate 496(a)              ----   8 months consecutive
                                    2800.2         ----   3 years concurrent

After November 5, 2014, Mr. Roach filed petitions pursuant to PC 1170.18 to reduce his 11377(a) and 496(a) convictions to misdemeanors.  The state conceded that Roach was entitled to the relief he requested.  The trial court granted the petitions and reduced the two convictions to misdemeanors.  Then the court pronounced a new effective total sentence of . . . wait for it . . . four years and four months. 

           Principal Term   2800.2       ---   3 years
           Subordinate       12021        ---   8 months consecutive
           Now Misdo       11377          ---- 140 days
           Now Misdo          496            ----100 days

Roach appeals (surprised?).  And the First District affirms.

Sometimes a result leaves you with a gnawing feeling it must be illegal, but your search for any authority to confirm your nagging ache of injustice is not just legal hypochondria turns up empty.  I imagine the appellate attorney for Mr. Roach may have experienced these symptoms.  

What appears simple at first blush, that when your felonies are reduced to misdemeanors the result is a shorter sentence, is quickly complicated when your sentence is compromised partly of crimes that cannot be reduced to misdemeanors.  To address this issue, the panel takes a look at cases where a sentence comprised of several crimes is remanded upon reversal of one of the counts, a pretty analogous situation.  In those cases, upon remand, the trial court was to pick a new count to be the principal term and go from there.  Which is what the trial court did here.  While recognizing it would be illegal to impose a total sentence longer than the original sentence, the text of 1170.18 contains no prohibition against imposing the same sentence.

But I am still sympathetic.  Roach received a sentence of four years and four months based on four felony convictions.  At a later time the electorate determined that two of those felony crimes were actually less serious and reduced them to misdemeanors cutting the maximum punishment by two-thirds.  After such a determination, it does seem illogical to impose the identical sentence.  Doesn't it?

But alas, there is no cannon of  stimulus autem iniquitas.  
         

P v. Valdez (4th Dist., Div.3) The Phrase "As Used Throughout This Code" Requires No Judicial Rewrite

In 2000, Mr, Valdez was sentenced to 25 years-to-life upon convictions for possession of heroin and being a felon in possession of a gun.  This was under the old "two strikes and any subsequent felony" law.  Valdez's early days in prison were eventful; he was caught using drugs and carrying shanks.  But he had mellowed out with age.  He had been sober for 12 years, was now in his sixties, and was suffering from end stage liver disease.

March of 2013, Valdez filed a PC 1170.126 petition to be resentenced pursuant to the 2012 change in the "strike" laws.  The state opposed his petition, arguing his was ineligible for 1170.126 relief because he was armed when he committed his 2000 crimes.  The trial court disagreed.  Valdez was inside his house when he was arrested for the heroin, while the gun was found outside in a car Valdez shared with his wife.  Because Valdez did not have ready access to the gun at the relevant time, the court found he was not armed, and thus eligible for 1170.126 relief.  

However, the court court denied relief because it found that resentencing Valdez would pose an "unreasonable risk of danger to public safety".  Valdez appealed.

In a 2-1 decision, the Fourth District reverses and remands the case for the trial court to apply the definition of "unreasonable risk of danger to public safety" contained with PC 1170.18, that section having been added after the trial court's denial.  

The majority opinion is, IMEO, exemplary in both style and substance.  The state first asserts that the trial court erred in finding Valdez was not armed during his crimes.  The opinion properly points out the state failed to previously challenge this asserted error via a writ petition, the proper procedural vehicle.  Even if the state had, they would not have won, states the opinion, giving an excellent and useful description of the applicable standard of review (it is not enough to argue the evidence supported a finding Valdez was armed, it must demonstrate the evidence was insufficient to support any contrary finding).  

Next the opinion addresses the phrase "unreasonable risk of danger to public safety" standing apart from the definition in 1170.18.  Interestingly, it firsts examines the Constitutional issue of whether the phrase is void for vagueness.  The recent United States Supreme Court decision of Johnson v. United States held the federal sentencing language "conduct that presents a serious potential risk of physical injury to another" was void for vagueness because it failed to provide notice of what conduct it encompassed and invited arbitrary enforcement by judges.  The majority dips its toe into this Constitutional pool, indicating the phrase may very well fail Constitutional muster.  But it then withdraws and (quite cleverly) points out that by defining the phrase via PC 1170.18,, (or in other words, choosing not to rewrite unambiguous statutory language) the Constitutional question can be avoided.  Because the trial court did not apply the 1170.18 definition at Valdez's hearing, the case must be remanded to have the trial court decide the petition using the proper definition.

Finally the majority rejects Valdez's assertion that he is entitled to a jury trial on the issue of whether he poses the "unreasonable risk" discussed above, despite a rather ingenuous argument: that a finding of eligibility ratchets the maximum sentence down to that authorized by Proposition 36's 2012 revisions.  Thus any subsequent finding of "unreasonable risk" can be viewed as elevating the maximum sentence, a move that requires a jury finding.  It is a good try, but the majority rejects the argument instead framing the relief available in a 1170.126 petition as a reduction in a sentence that remains legal, at or below the statutory maximum.  

Finally the dissent pens a couple of etiolated paragraphs that accomplish little other than stating the result the justice would have preferred along with some attenuated string citations to give it some company.  

P v. Bradshaw (5th Dist.) The Issue of PC 1210.1(a) Eligibility Is Not Subject To the Waiver Doctrine

Bradshaw pleaded guilty to felony methamphetamine possession, H&S 11377(a), in August of 2014.  He pleaded guilty pursuant to a plea agreement whereby he would receive a grant of felony probation that would include nine months in the county jail.  He requested immediate sentencing.  The trial court followed the plea agreement and placed Bradshaw on felony probation including a term of nine months in the county jail.  The trial court was silent on whether Bradshaw was disqualified from sentencing pursuant to PC 1210.1(a).    

While Bradshaw was in the county jail, California voters approved Proposition 47 in the November 4, 2014 election.  One consequence of 2014's Proposition 47 was that H&S 1377(a) violations are now straight misdemeanors.  Bradshaw appealed his conviction asking the appellate court to remand his case to the trial court with directions to reduce his conviction from a felony to a misdemeanor.  

The Fifth District remands the matter, but due to a unique wrinkle.

The panel holds that Bradshaw is not entitled to a appellate remand as to the Proposition 47 issue, rather he needs to follow the statutory procedure, per PC 1170.18, to obtain that relief.  However, the panel finds that the case needs to be remanded on another point.  As Bradshaw was convicted of a non-violent drug offense the court had a duty to sentence him to drug probation under 1210.1(a), unless he was ineligible.  As the trial did not determine Bradshaw's eligibility, it is unknown whether it erred in not following the mandatory sentencing scheme for eligible non-violent drug offenders.

The state argues that Bradshaw waived any objection to this issue, but the panel notes 1210.1(a) imposes a mandatory duty on the trial court, and a judicial duty is not subject to the waiver doctrine.  So the panel remands the matter to the trial court for a determination of Bradshaw's eligibility for the mandatory 1210.1(a) sentencing scheme.  And for sake of convenience and efficiency, the panel treats Bradshaw's argument on appeal as a 1170.18 motion to also be decided by the trial court upon remand.

P v. Martinez (4th Dist., Div.3) An Appellate Court Has No Duty to Review the Record for Meritorious Issues in a NGI Extension Appeal

In 2004, Mr. Martinez was found not guilty by reason of insanity (NGI) of residential burglary.  Subsequently, he became an involuntary patient in the state hospital for a time equal to the maximum prison sentence for residential burglary.  When his time was up, he agreed to an extension of his NGI commitment.  Martinez was placed on outpatient status, but after he went AWOL his outpatient status was revoked and he was placed back in the state hospital.  March 2015, a petition to extend Martinez's commitment was filed and a jury trial was conducted.

A jury found true the facts required for the extension; to wit, that Martinez suffered from a qualifying mental condition, posed a substantial risk of physical harm to others, and had serious difficulty controlling his dangerous behavior.  Upon the jury's findings, the trial court ordered a two year extension of Martinez's NGI hospital commitment.  Martinez appealed and an appellate attorney was appointed to represent Martinez on appeal.

Martinez's attorney reviewed the record, found no meritorious appellate issues, and filed a brief with the appellate court stating same (In California this is sometimes called a Wende brief).  The Fourth District sent a copy of the Wende brief to Martinez and told him if he wanted to, he was welcome to file his own brief if he disagreed with his attorney.  Martinez did not respond.

The issue is whether the Fourth District has a duty to go through the record and see if it can identify any meritorious appellate issues.  The panel answers "no", and dismisses Martinez's appeal.

An appellate court does have a duty to independently review the record upon receiving a Wende brief in an appeal of right in a criminal case.  This duty originates with the right to counsel contained in the Sixth Amendment to the United States Constitution and applied to the state via the Fourteenth Amendment.  This duty of independent review applies in cases in which the defendant has a Constitutional right to counsel.  Since the United States Supreme Court has held that the Constitutional right to appellate counsel only covers the first appeal of right in a criminal matter, Martinez has no Constitutional right to counsel in his NGI appeal.  That California law provides Martinez a right to counsel in his NGI appeal is of no effect on this issue.  It is the source of the right to counsel that controls.  If a source of the right is the U.S. Constitution, independent review is required.  If the Constitution doesn't require the right to counsel in the matter, independent review is not required.    

The panel's analysis is consistent with other California appellate courts that have found no duty of independent appellate court review in juvenile dependency appeals, conservatorship appeals, and mentally disordered offender (MDO) appeals, other proceedings in which California law provides a right to counsel, but to which there is no Sixth Amendment right to counsel.

As a backup argument, Martinez argues the principle of equal protection.  But this argument doesn't really go anywhere as the panel decides NGI appellants are not similarly situated to criminal defendants pursuing a first appeal of right.  

P v. Jones (3rd Dist.) On Appeal, the Appellate Court Has a Duty to Apply the Law as it Exists When the Appellate Court Renders Its Decision

A jury convicted Mr. Jones of residential burglary.  The trial court found true allegations that Jones had two previous "strike" convictions (residential burglaries from 1994 & 1996) and had served seven prior prison terms under PC 667.5(b).

At the time of Jones' sentencing, the trial court chose to dismiss one of Jones' prior strikes.  Had the trial not done so, Jones would have received a mandatory life sentence.  The trial court stated for the record the reasons its was dismissing one of Jones' strikes.  Per the opinion, the record shows the trial court engaged in a "robust analysis" which resulted in a explanation that was "specific, focused, and long".   The result was instead of a life sentence, Jones got 25 years.

However, the court's minute order (a written synopsis of the court proceedings) did not contain a recitation of the court's reasoning regarding its decision to dismiss the strike.  On appeal, the state asserts that the Third District should remand the matter for the trial court to augment its minute order with a written order reflecting the explanation from the record.  The reason for the state's position is that prior to January 1, 2015, PC 1385 required the trial court to include within its minute order, a written explanation explaining its decision to strike a prior conviction.  Since Jones' sentencing hearing was prior to 2015, the court should have to amend its minute order to comply with the law in effect when the minute order was created.

In the published portion of its opinion, the Third District disagrees and affirms.

This is a case where the interpretation of the legal principle at issue dwarfs the consequences the decision has under these circumstances.  Whether the trial court is made to cut and paste its more than adequate reasoning for dismissing Jones' strike from the transcript to the minute order is for all practical purposes meaningless.  But the issue of what law an appellate court shall apply when the law has been changed between the judicial order being appealed and the case reaching the appellate court is an issue of much contention within the context of 2012's Proposition 36 and 2014's Proposition 47.  And as an initiative to decriminalize marijuana could pass this November, this is an issue likely to recur.  

This panel's position is clear.  “If the judgment is not yet final because it is on appeal, the appellate court has a duty to apply the law as it exists when the appellate court renders its decision. [Citations.]”  The state responds that changes to the penal code are not to be applied retroactively absent an expressed intent otherwise.  The panel responds that this has no application to the above cited rule, effectively saying that "retroactively" implicitly contains the assumption that the case is final for appellate purposes.  In other words, if the case is not final, application of the new law is not retroactive.  The panel refuses to remand a case back to the trial court to fulfill a duty that exists no longer.  

It is an interesting holding on a legal issue we're guaranteed to see again (and again).