The authorities went to conduct a probation search of Probationer's home, which she leased. The home's garage had been converted into a living area. When the authorities arrived, Probationer told them that the house was hers and her boyfriend's and that Ms. Carreon was staying in the converted garage.
While conducting a protective sweep, the officers found the door to the garage closed, but not locked. They opened the door and inside the dark room was Carreon's young son. The officers told Carreon to remove her son from the room and stand by, which she did.
Once the premises were cleared, the search began. The officers reentered the garage and searched some dresser drawers, finding some papers that were consistent with drug-dealing. A purse within the room was also searched and found to contain methamphetamine. Carreon later admitted to selling the drug.
Carreon moved to suppress the methamphetamine and papers on the basis the searches of the dresser and purse violated the Fourth Amendment to the United States Constitution. The magistrate denied the motion. Carreon then raised the issue in the Superior Court via a Penal Code section 995 motion, which was also denied. She subsequently pleaded guilty and appealed.
The Sixth District reverses, holding the searches violated the Fourth Amendment.
This opinion is required reading for its exemplary analysis of the "common authority" theory of consent, an issue whose mention outnumbers its understanding by at least 100 to 1. The critical issue is whether an objectively reasonable officer could believe that a host had authority to consent to the search her guest's purse or the dresser inside the room the guest was occupying. The panel, rightly IMEO, answers this question, "no".
Reading this opinion made me think of an interesting hypothetical. If I am on probation and let my apartment via Airbnb, does a consent-to-search term of my probation mean the poor sap renting my apartment is subject to a valid search while he is in possession?
Thursday, June 30, 2016
P v. Sanchez (Cal. SC) Case Specific Out-Of-Court Statements Treated By Gang Expert As True To Support His Opinion Are Hearsay
Mr. Sanchez, seeing police, took off and ran into a stranger's apartment where he holed up in the bathroom. The police arrested him and noticed on a tarpaulin outside the bathroom window a loaded gun and four packages of methamphetamine. Sanchez was charged with being a felon in possession of a gun, possessing drugs while armed with a loaded gun, and actively participating in a criminal street gang. Also alleged was a gang enhancement and a prior prison term.
At trial the State called a veteran policeman to testify as an expert witness on the topic of gangs. He detailed his education and experience in the field of gangs. Then, he testified as to statements that Sanchez had made to another police officer while that officer was giving Sanchez a notice that the police considered him to be associating with a gang. The expert further testified as to facts within police reports involving Sanchez, of which the expert had no first-hand knowledge.
Then the expert was asked to opine, given a hypothetical assuming the above facts were true, whether the gun and meth found on the tarp would have been benefited the gang. Unsurprisingly, he answered, "yes". A jury convicted Sanchez on all counts. Sanchez appealed.
An appellate court reversed the active participation count, but otherwise affirmed. The California Supreme Court granted review and now reverses the gang enhancement based on the prejudicial error of admitting inadmissible hearsay.
In a unanimous opinion, the Court does a nice job of tackling a dirty job that was in dire need of attention. The issue is whether the expert's testimony as to other officer's observations were hearsay, specifically whether or not they were offered for their truth.
What drives the analysis is a little history lesson. The current mess was created, in large part, due to a blurring of the line between general knowledge expert testimony and factual case specific testimony. The Court now reestablishes that line. When the expert in Sanchez's case testified as to the operations of the gang at issue, that was fine. But when Sanchez testified as to statements of other officers that were specific to Sanchez, these were inadmissible hearsay as they were clearly offered for their truth. Thankfully, the opinion swats away the excerebrose argument that the statements weren't offered for their truth, pointing out that if they weren't offered for their truth, the expert's opinion would have been irrelevant (and a jury instructions that charges the jury with evaluating the truth of the facts underlying an expert's opinion).
Now, in order for expert witnesses to opine on hypotheticals based upon assumed facts, those facts must be established by admissible evidence.
At trial the State called a veteran policeman to testify as an expert witness on the topic of gangs. He detailed his education and experience in the field of gangs. Then, he testified as to statements that Sanchez had made to another police officer while that officer was giving Sanchez a notice that the police considered him to be associating with a gang. The expert further testified as to facts within police reports involving Sanchez, of which the expert had no first-hand knowledge.
Then the expert was asked to opine, given a hypothetical assuming the above facts were true, whether the gun and meth found on the tarp would have been benefited the gang. Unsurprisingly, he answered, "yes". A jury convicted Sanchez on all counts. Sanchez appealed.
An appellate court reversed the active participation count, but otherwise affirmed. The California Supreme Court granted review and now reverses the gang enhancement based on the prejudicial error of admitting inadmissible hearsay.
In a unanimous opinion, the Court does a nice job of tackling a dirty job that was in dire need of attention. The issue is whether the expert's testimony as to other officer's observations were hearsay, specifically whether or not they were offered for their truth.
What drives the analysis is a little history lesson. The current mess was created, in large part, due to a blurring of the line between general knowledge expert testimony and factual case specific testimony. The Court now reestablishes that line. When the expert in Sanchez's case testified as to the operations of the gang at issue, that was fine. But when Sanchez testified as to statements of other officers that were specific to Sanchez, these were inadmissible hearsay as they were clearly offered for their truth. Thankfully, the opinion swats away the excerebrose argument that the statements weren't offered for their truth, pointing out that if they weren't offered for their truth, the expert's opinion would have been irrelevant (and a jury instructions that charges the jury with evaluating the truth of the facts underlying an expert's opinion).
Now, in order for expert witnesses to opine on hypotheticals based upon assumed facts, those facts must be established by admissible evidence.
Monday, June 27, 2016
P v. Hartley (6th Dist.) Refusal to Pay Cabbie Was a "Transaction Gone Bad", Not Theft By False Pretenses
Mr. Hartley went out for drinks after work one night. Later on he called a cab to drive him home. When the cabbie was unsure of the route, Hartley gave him directions (though the parties differ as to what were those directions).
The men started to bicker when the cabbie went straight at an intersection at which Hartley claimed he told the cabbie to turn. Hartley accused the cabbie of running up the fare and stated he was not going to pay. He then demanded the cabbie stop and let him out. The cabbie let Hartley out and followed Hartley as he walked home, demanding he pay the fare. Hartley never paid.
Based on these events, Hartley was charged with, and convicted of, petty theft of labor by false pretenses. He appealed.
The Sixth District reverses.
The issue is whether the evidence was sufficient to permit a reasonable jury to conclude that Hartley had the intent to deceive the cabbie in order to get a free ride (the transportation equivalent of the old "dine and dash"). The panel answers the question "no". On these facts it is a temporal question. The evidence shows that by hailing getting into the cab, Hartley made a representation that he would pay the cabbie for a ride home. The cabbie, obviously, relied on this representation when giving Hartley a ride. It is also irrefragable that, at some point, Hartley formed an intent not to pay. The question is whether, after forming the intent not to pay, Hartley continued to represent he would pay in order steal the cabbie's services.
Because Hartley told the cabbie, once the disputed turn was missed, or not missed, that he thought the cabbie was unethically running up the fare and was not going to pay, there is insufficient evidence Hartley ever possessed the required intent. Once Hartley believed the cabbie had intentionally missed the turn, he announced he was not going to pay and wanted out. It would be unreasonable to find, from the evidence here, that Hartley had any intent not to pay prior to the intersection of contention.
Using the "dine and dash" analogy, here the defendant did not order a bowl of soup with the intent to consume it and leave without paying. Instead he ordered a bowl of soup, intending to consume it and pay for it, but after finding what he (correctly or not) believed to be a fly in the bowl, stopped eating and refused to pay the bill. As the panel says, this is a "transaction gone bad", not a crime.
The men started to bicker when the cabbie went straight at an intersection at which Hartley claimed he told the cabbie to turn. Hartley accused the cabbie of running up the fare and stated he was not going to pay. He then demanded the cabbie stop and let him out. The cabbie let Hartley out and followed Hartley as he walked home, demanding he pay the fare. Hartley never paid.
Based on these events, Hartley was charged with, and convicted of, petty theft of labor by false pretenses. He appealed.
The Sixth District reverses.
The issue is whether the evidence was sufficient to permit a reasonable jury to conclude that Hartley had the intent to deceive the cabbie in order to get a free ride (the transportation equivalent of the old "dine and dash"). The panel answers the question "no". On these facts it is a temporal question. The evidence shows that by hailing getting into the cab, Hartley made a representation that he would pay the cabbie for a ride home. The cabbie, obviously, relied on this representation when giving Hartley a ride. It is also irrefragable that, at some point, Hartley formed an intent not to pay. The question is whether, after forming the intent not to pay, Hartley continued to represent he would pay in order steal the cabbie's services.
Because Hartley told the cabbie, once the disputed turn was missed, or not missed, that he thought the cabbie was unethically running up the fare and was not going to pay, there is insufficient evidence Hartley ever possessed the required intent. Once Hartley believed the cabbie had intentionally missed the turn, he announced he was not going to pay and wanted out. It would be unreasonable to find, from the evidence here, that Hartley had any intent not to pay prior to the intersection of contention.
Using the "dine and dash" analogy, here the defendant did not order a bowl of soup with the intent to consume it and leave without paying. Instead he ordered a bowl of soup, intending to consume it and pay for it, but after finding what he (correctly or not) believed to be a fly in the bowl, stopped eating and refused to pay the bill. As the panel says, this is a "transaction gone bad", not a crime.
Saturday, June 25, 2016
P v. Cordova (6th Dist.) PC 1170.18(c) Definition of "Unreasonable Risk" Applies to PC 1170.126 Retroactively
Mr. Cordova sustained four felony convictions in 1973 which later became "strike" offenses. Then in 1995, he was convicted for carrying a concealed dirk (or dagger) and, under the old "at least two prior strikes plus any current felony" law, was sentenced to 25 to life.
In 2012, the electorate passed the Reform Act, which changed the aforementioned law to "at least two prior strikes plus a current strike". The Reform Act also created a statutory vehicle, PC 1170.126, by which eligible prisoners sentenced to life under the old law could petition their trial court for resentencing under the new law. The trial court is to grant such petitions unless doing so would "pose an unreasonable risk of danger to public safety". The Reform Act did not define this "unreasonable risk" term, nor did the term appear anywhere else in the California Codes.
Cordova filed his 1170.126 petition and the trial court denied it. He appealed.
The Sixth District reverses and remands for further proceedings.
At the outset of my comments, I must exclaim, "wow". This is an impressive opinion that should be read in its entirety (especially by California Supreme Court justices). Just as certain Federal Circuit Court judges (i.e. Posner & Kozinski) often pen opinions that are embarrassingly more thoughtful and complete than those of their jurisdictions' highest court, so too here does Justice Rushing.
The first issue is whether the "unreasonable risk" definition contained in PC 1170.18, enacted November 5, 2014, as part of Proposition 47, applies to Reform Act petitions. The opinion holds it does based on the unambiguous language that the definition is to be applied "throughout this Code". But the opinion does not stop there, it identifies the State's arguments for a contrary result and assiduously (and to the embarassment of the State) examines them. The result does not cast Kamala Harris or her minions in a good light.
The next issue is whether the 1170.18 definition should apply retroactively to cases not yet final on November 5, 2014. The opinion holds it does, providing a primer on statutory retroactivity more extensive and intelligent than any treatise or California Supreme Court opinion I've seen.
The remaining issues involve the application of the Evidence Code to 1170.18 hearings, the burden of persuasion, and equal protection.
Oh, there is a dissent. It lazily uses the same specious tautologies so effectively exposed as baseless in the opinion to justify the dissenting justice's personal preferences. It too should be read, for a different reason.
In 2012, the electorate passed the Reform Act, which changed the aforementioned law to "at least two prior strikes plus a current strike". The Reform Act also created a statutory vehicle, PC 1170.126, by which eligible prisoners sentenced to life under the old law could petition their trial court for resentencing under the new law. The trial court is to grant such petitions unless doing so would "pose an unreasonable risk of danger to public safety". The Reform Act did not define this "unreasonable risk" term, nor did the term appear anywhere else in the California Codes.
Cordova filed his 1170.126 petition and the trial court denied it. He appealed.
The Sixth District reverses and remands for further proceedings.
At the outset of my comments, I must exclaim, "wow". This is an impressive opinion that should be read in its entirety (especially by California Supreme Court justices). Just as certain Federal Circuit Court judges (i.e. Posner & Kozinski) often pen opinions that are embarrassingly more thoughtful and complete than those of their jurisdictions' highest court, so too here does Justice Rushing.
The first issue is whether the "unreasonable risk" definition contained in PC 1170.18, enacted November 5, 2014, as part of Proposition 47, applies to Reform Act petitions. The opinion holds it does based on the unambiguous language that the definition is to be applied "throughout this Code". But the opinion does not stop there, it identifies the State's arguments for a contrary result and assiduously (and to the embarassment of the State) examines them. The result does not cast Kamala Harris or her minions in a good light.
The next issue is whether the 1170.18 definition should apply retroactively to cases not yet final on November 5, 2014. The opinion holds it does, providing a primer on statutory retroactivity more extensive and intelligent than any treatise or California Supreme Court opinion I've seen.
The remaining issues involve the application of the Evidence Code to 1170.18 hearings, the burden of persuasion, and equal protection.
Oh, there is a dissent. It lazily uses the same specious tautologies so effectively exposed as baseless in the opinion to justify the dissenting justice's personal preferences. It too should be read, for a different reason.
Friday, June 24, 2016
P v. Dunn (6th Dist.) The Sixth District Reverses Denial of 1170.18 Petition, Refuses to Find a "Benefit of the Bargain" Exception to Prop 47 Relief
In March of 2014, Mr. Dunn was pulled over while driving a motorcar. He was arrested on outstanding traffic warrants and searched. The pants he was wearing (though he disclaimed ownership of said pants) had a baggie of cocaine in the pocket. The motorcar he was driving contained several more baggies of coke, over 500 bucks in cash, 53 rounds of ammo, and a police scanner.
For this, Dunn was charged with three felonies: possession of cocaine for sale (HS 11351), possession of cocaine (HS 11350), and felon-in-possession of ammo. Also alleged were two prior prison terms, under PC 667.5(b)(1). Dunn and the State negotiated a plea bargain whereby Dunn would plead guilty to felony possession of cocaine (11350), admit both prior prison terms, and accept a sentence of five years (three for the possession, plus two years for the prior prison term enhancements). The state agreed, in return, to dismiss the possession for sale and felon-in-possession of ammo counts.
Dunn pleaded per the plea bargain and, in August of 2014, received his five year sentence. Although the record is silent on the issue, it is implied the State kept its promise and moved to dismiss the two remaining counts. Both sides made their concessions and received their benefits under the plea bargain.
Comes then November 4, 2014, and California voters pass Proposition 47. Which, among other things, reduced possession of cocaine (11350) from a felony to a misdemeanor. Also in Proposition 47 was a new statute (PC 1170.18) whereby a person serving a sentence, whether convicted by trial or plea, for a crime which had been reduced to a misdemeanor by Proposition 47, could petition the court to reduce his conviction to a misdemeanor and resentence him to the (now) applicable misdemeanor sentence. Furthermore, the new law stated the court was obligated to grant the reduction and commence resentencing, unless the court found the defendant posed an unreasonable risk to public safety.
In December 2014, Dunn filed his 1170.18 petition. Clearly his conviction for HS 11350 was a crime which was eligible for a reduction to a misdemeanor and subsequent resentencing. The State objected to the petition, not on eligibility grounds, but on the ground that if Dunn's petition was granted, the State would be denied its benefit under the previous plea bargain, to wit, the five year sentence (if the petition were granted, Dunn's maximum sentence would be 354 days). The trial court agreed with the State and denied Dunn's petition. Dunn appealed.
The Sixth Circuit reverses.
[Note: This issue of whether there is an implied-in-law "benefit of the bargain" exception applicable to PC 1170.18 petitions is currently before the California Supreme Court in People v. Harris.]
The 3-0 decision of the panel begins with a straightforward statutory analysis of 1170.18. The applicable language doesn't lend itself to an argument that the statute has more than one reasonable interpretation. Section 1170.18, says it applies to people "currently serving a sentence for a conviction, whether by trial or plea . . . ." And Dunn is currently serving a sentence for a conviction by plea, hence he is eligible for the relief requested.
For an eligible petitioner, section 1170.18 requires the court grant relief unless the court finds that granting the relief would result in an unreasonable risk to public safety. The panel finds this language provides the sole basis for a trial court to deny relief to an eligible petitioner; inclusio unius est exclusio alterius.
Since the statutory language is bereft of any support for the State's position, the State is forced to resort to an extra-statutory argument. It cites to a 1978 case in which the California Supreme Court allowed the State to reinstate counts previously dismissed as part of a plea bargain when, in the time period between the defendant's plea and sentencing, the legislature decriminalized the crime to which the defendant pleaded.
The panel's rejection of this argument is four-fold. First, it cites to a subsequent 2013 California Supreme Court decision that held that plea bargains, unless containing an explicit term evincing a contrary intent, are deemed to incorporate any future statutory changes. Second, the panel notes the language in Proposition 47 which prohibits trial courts from imposing, upon eligible petitioners, sentences longer than the original sentence. Allowing the State to reinstate dismissed charges would create a substantial risk of such an outcome. Third, the panel notes that it is settled law that a defendant may not be punished for exercising a protected or constitutional right. Finally, and most importantly IMEO, the panel actually analyzes the 1978 case and finds it doesn't actually stand for the proposition asserted by the State. In that case, it was that the defendant would actually escape any risk of incarceration (as the act to which he pleaded was no longer a crime) that frustrated the plea bargain and justified allowing the State to reinstate the dismissed counts. Here, there is no risk Dunn (nor any petitioner) will avoid punishment altogether as the statutory amendments at issue don't decriminalize the conduct (possession of cocaine), rather they only reduce it.
The next step is a remand to the trial court for it to determine whether granting Dunn's petition would pose an unreasonable risk to the public safety. And given the previous decision to split Dunn's sentence, I would think such a decision unlikely.
For this, Dunn was charged with three felonies: possession of cocaine for sale (HS 11351), possession of cocaine (HS 11350), and felon-in-possession of ammo. Also alleged were two prior prison terms, under PC 667.5(b)(1). Dunn and the State negotiated a plea bargain whereby Dunn would plead guilty to felony possession of cocaine (11350), admit both prior prison terms, and accept a sentence of five years (three for the possession, plus two years for the prior prison term enhancements). The state agreed, in return, to dismiss the possession for sale and felon-in-possession of ammo counts.
Dunn pleaded per the plea bargain and, in August of 2014, received his five year sentence. Although the record is silent on the issue, it is implied the State kept its promise and moved to dismiss the two remaining counts. Both sides made their concessions and received their benefits under the plea bargain.
Comes then November 4, 2014, and California voters pass Proposition 47. Which, among other things, reduced possession of cocaine (11350) from a felony to a misdemeanor. Also in Proposition 47 was a new statute (PC 1170.18) whereby a person serving a sentence, whether convicted by trial or plea, for a crime which had been reduced to a misdemeanor by Proposition 47, could petition the court to reduce his conviction to a misdemeanor and resentence him to the (now) applicable misdemeanor sentence. Furthermore, the new law stated the court was obligated to grant the reduction and commence resentencing, unless the court found the defendant posed an unreasonable risk to public safety.
In December 2014, Dunn filed his 1170.18 petition. Clearly his conviction for HS 11350 was a crime which was eligible for a reduction to a misdemeanor and subsequent resentencing. The State objected to the petition, not on eligibility grounds, but on the ground that if Dunn's petition was granted, the State would be denied its benefit under the previous plea bargain, to wit, the five year sentence (if the petition were granted, Dunn's maximum sentence would be 354 days). The trial court agreed with the State and denied Dunn's petition. Dunn appealed.
The Sixth Circuit reverses.
[Note: This issue of whether there is an implied-in-law "benefit of the bargain" exception applicable to PC 1170.18 petitions is currently before the California Supreme Court in People v. Harris.]
The 3-0 decision of the panel begins with a straightforward statutory analysis of 1170.18. The applicable language doesn't lend itself to an argument that the statute has more than one reasonable interpretation. Section 1170.18, says it applies to people "currently serving a sentence for a conviction, whether by trial or plea . . . ." And Dunn is currently serving a sentence for a conviction by plea, hence he is eligible for the relief requested.
For an eligible petitioner, section 1170.18 requires the court grant relief unless the court finds that granting the relief would result in an unreasonable risk to public safety. The panel finds this language provides the sole basis for a trial court to deny relief to an eligible petitioner; inclusio unius est exclusio alterius.
Since the statutory language is bereft of any support for the State's position, the State is forced to resort to an extra-statutory argument. It cites to a 1978 case in which the California Supreme Court allowed the State to reinstate counts previously dismissed as part of a plea bargain when, in the time period between the defendant's plea and sentencing, the legislature decriminalized the crime to which the defendant pleaded.
The panel's rejection of this argument is four-fold. First, it cites to a subsequent 2013 California Supreme Court decision that held that plea bargains, unless containing an explicit term evincing a contrary intent, are deemed to incorporate any future statutory changes. Second, the panel notes the language in Proposition 47 which prohibits trial courts from imposing, upon eligible petitioners, sentences longer than the original sentence. Allowing the State to reinstate dismissed charges would create a substantial risk of such an outcome. Third, the panel notes that it is settled law that a defendant may not be punished for exercising a protected or constitutional right. Finally, and most importantly IMEO, the panel actually analyzes the 1978 case and finds it doesn't actually stand for the proposition asserted by the State. In that case, it was that the defendant would actually escape any risk of incarceration (as the act to which he pleaded was no longer a crime) that frustrated the plea bargain and justified allowing the State to reinstate the dismissed counts. Here, there is no risk Dunn (nor any petitioner) will avoid punishment altogether as the statutory amendments at issue don't decriminalize the conduct (possession of cocaine), rather they only reduce it.
The next step is a remand to the trial court for it to determine whether granting Dunn's petition would pose an unreasonable risk to the public safety. And given the previous decision to split Dunn's sentence, I would think such a decision unlikely.
Thursday, June 23, 2016
P v. Endsley (4th Dist., Div.2) It is the Duty of a Trial Court to Obtain the Required Recommendation Upon Receiving a Petition for Conditional Release
In 1995, Mr. Endsley shot and killed his dad. He was tried and found not guilty by reason of insanity (NGI). Now Endsley resides at a state mental hospital.
In May of 2015, Endsley filed a petition for conditional release under PC 1026.2. The trial court denied the petition without a hearing. Ensley appealed.
The Fourth District reverses and remands with directions for the trial court to request Endsley's doctor to prepare a written recommendation regarding the petition and to hold a hearing on whether Endsley is entitled to conditional release.
The issue is one of statutory construction. Upon receiving a petition for conditional release, PC 1026.2(e) states the trial court "shall hold a hearing". But 1026.2(l) prohibits the court from taking any action without first obtaining the written recommendation of the person in charge of the defendant's treatment. The State argues that the trial court was correct to deny the petition sans hearing because Endsley's petition was deficient in that it did not contain the required written recommendation. Endsley replies that it is the court's duty to obtain the recommendation, not his, and that the court erred by not ordering the recommendation and, upon receipt, conducting the required hearing.
The panel agrees with Endsley. Its reasoning incorporates an analogy to a Welfare & Institutions Code sections and reasons of judicial efficiency. Strangely though it omits the obvious argument, which is textual. The court is prohibited from taking action "without first obtaining the written recommendation . . . ." According to Random House, "obtain" means "to come into possession of; get, acquire, or procure, as through an effort or by a request". A brief textual approach appears to end the discussion as to whom the burden is laid to get the report.
At any rate, the trial court is instructed to request the necessary report and then hold a hearing on whether Endsley is entitled to conditional release.
In May of 2015, Endsley filed a petition for conditional release under PC 1026.2. The trial court denied the petition without a hearing. Ensley appealed.
The Fourth District reverses and remands with directions for the trial court to request Endsley's doctor to prepare a written recommendation regarding the petition and to hold a hearing on whether Endsley is entitled to conditional release.
The issue is one of statutory construction. Upon receiving a petition for conditional release, PC 1026.2(e) states the trial court "shall hold a hearing". But 1026.2(l) prohibits the court from taking any action without first obtaining the written recommendation of the person in charge of the defendant's treatment. The State argues that the trial court was correct to deny the petition sans hearing because Endsley's petition was deficient in that it did not contain the required written recommendation. Endsley replies that it is the court's duty to obtain the recommendation, not his, and that the court erred by not ordering the recommendation and, upon receipt, conducting the required hearing.
The panel agrees with Endsley. Its reasoning incorporates an analogy to a Welfare & Institutions Code sections and reasons of judicial efficiency. Strangely though it omits the obvious argument, which is textual. The court is prohibited from taking action "without first obtaining the written recommendation . . . ." According to Random House, "obtain" means "to come into possession of; get, acquire, or procure, as through an effort or by a request". A brief textual approach appears to end the discussion as to whom the burden is laid to get the report.
At any rate, the trial court is instructed to request the necessary report and then hold a hearing on whether Endsley is entitled to conditional release.
Wednesday, June 22, 2016
P v. Garrett (6th Dist.) The Sixth District Gives Effect to Mandatory Charging Language In PC 459.5, Disagreeing With P v. Bias
In March, I commented on P v. Bias, a decision by the Fourth District with which I disagreed. Here the Sixth District tackles the same issue and, IMEO, gets it right.
February 2014, Mr. Garrett and a companion went into a QuickStop armed with a stolen credit card. The companion grabbed a handful of gift cards and headed to the register, stolen credit card in hand. Garrett saw a police car pull into the QuickStop parking lot and unsuccessfully tried to cheese it. He was arrested, charged with, and pleaded guilty to, felony commercial burglary, PC 459.
Garrett returned to court in December 2014, petitioning under PC 1170.18 for his charge to be reduced to a misdemeanor as an act of shoplifting, PC 459.5. He asserted the handful of gift cards was worth 50 bucks and thus his crime was entering the open QuickStop, during business hours, with an intent to commit larceny of less than 950 dollars.
The trial court denied Garrett's petition on the basis that Garrett's intent upon entering the QuickStop was not to commit larceny, but to commit identity theft, PC 530.5. An appeal followed.
The Sixth District reverses the denial of Garrett's PC 1170.18 petition and remands the case for further proceedings.
Where P v. Bias misrepresented the issue as being whether the defendant entered the store with an intent to commit identify theft OR an intent to commit larceny, this panel admits the reality of the situation. The defendant obviously intended to commit both crimes when he entered the store. He intended to present the stolen credit card for a fraudulent purpose (identity theft) and, following his identity theft, walk out the door with 50 bucks worth of gift cards obtained by via fraudulent pretense (larceny).
Given these two intents (one included within 459.5 and one not), the panel then turns to an often overlooked phase in PC 459.5;
February 2014, Mr. Garrett and a companion went into a QuickStop armed with a stolen credit card. The companion grabbed a handful of gift cards and headed to the register, stolen credit card in hand. Garrett saw a police car pull into the QuickStop parking lot and unsuccessfully tried to cheese it. He was arrested, charged with, and pleaded guilty to, felony commercial burglary, PC 459.
Garrett returned to court in December 2014, petitioning under PC 1170.18 for his charge to be reduced to a misdemeanor as an act of shoplifting, PC 459.5. He asserted the handful of gift cards was worth 50 bucks and thus his crime was entering the open QuickStop, during business hours, with an intent to commit larceny of less than 950 dollars.
The trial court denied Garrett's petition on the basis that Garrett's intent upon entering the QuickStop was not to commit larceny, but to commit identity theft, PC 530.5. An appeal followed.
The Sixth District reverses the denial of Garrett's PC 1170.18 petition and remands the case for further proceedings.
Where P v. Bias misrepresented the issue as being whether the defendant entered the store with an intent to commit identify theft OR an intent to commit larceny, this panel admits the reality of the situation. The defendant obviously intended to commit both crimes when he entered the store. He intended to present the stolen credit card for a fraudulent purpose (identity theft) and, following his identity theft, walk out the door with 50 bucks worth of gift cards obtained by via fraudulent pretense (larceny).
Given these two intents (one included within 459.5 and one not), the panel then turns to an often overlooked phase in PC 459.5;
a person who enters a store “with intent to commit larceny” shall be punished as a misdemeanant if the value of the property to be taken is not more than $950. (Pen. Code, § 459.5, subd. (a).) Subdivision (b) further provides that any act defined as shoplifting “shall be charged as shoplifting” and may not be charged as burglary or theft of the same property. (emphasis added)The panel applies this rather clear language and holds that if the "act" fits under the definition of shoplifting, the act must be prosecuted and punished as shoplifting. As here the "act" clearly is one of shoplifting, the result is that the trial court's denial is reversed and the case is remanded for the trial court to determine whether Garrett poses an unreasonable risk to public safety.
P v. Maynarich (2nd Dist., Div.5) U.S. Currency Is a "Bank Bill or Note", Falling Under PC 473
In 2012, Mr. Maynarich was discovered to have three counterfeit fifty dollar bills in his possession. He was charged with, and pleaded to, a felony violation of PC 475(a) which makes criminal, via PC 470(d), the possession of counterfeit "bank bills or notes".
Following the November 4, 2014, passage of Proposition 47, Maynarich petitioned the trial court to reduce his felony 475(a) conviction to a misdemeanor. Proposition 47 amended PC 473(b), the sentencing statute for forgery, to read,
The Second Division reverses and remands.
Resolving the issue of whether U.S. currency is a bank bill or bank notes requires a brief historical study of finance and reserve banking and the opinion does this nicely. Section 475 was enacted in 1872, and at that time "bank bill" and "bank note" meant the same thing, "a written promise by a bank to pay a particular sum of money to the holder, passing from hand to hand as money". As time passed, most private banks were forbidden to issue bank notes or bills. However, some banks, specifically the Federal Reserve Banks of the United States, were, and still are, permitted to issue bank notes. And a quick glance at any paper U.S. currency will reveal the words, "Federal Reserve Note". In other words, U.S. currency is a note issued by a Federal Reserve bank, a bank note.
Thus the panel reverses the trial court's denial and remands the case for a determination of whether Maynarich poses an unreasonable risk to public safety. Given the charge and the fact Maynarich was granted probation at his initial sentencing, I'll bet bank notes Maynarich gets his misdemeanor.
Following the November 4, 2014, passage of Proposition 47, Maynarich petitioned the trial court to reduce his felony 475(a) conviction to a misdemeanor. Proposition 47 amended PC 473(b), the sentencing statute for forgery, to read,
[A]ny person who is guilty of forgery relating to a check, bond, bank bill, note, cashier’s check, traveler’s check, or money order, where the value of the check, bond, bank bill, note, cashier’s check, traveler’s check, or money order does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year [a misdemeanor] . . . .Since three times fifty is well below 950, Maynarich's forgery appeared to be eligible for the relief sought. But, the trial court denied Maynarich's petition, finding that U.S. currency was not one of the items listed, specifically not a bank bill or bank note. Maynarich appealed.
The Second Division reverses and remands.
Resolving the issue of whether U.S. currency is a bank bill or bank notes requires a brief historical study of finance and reserve banking and the opinion does this nicely. Section 475 was enacted in 1872, and at that time "bank bill" and "bank note" meant the same thing, "a written promise by a bank to pay a particular sum of money to the holder, passing from hand to hand as money". As time passed, most private banks were forbidden to issue bank notes or bills. However, some banks, specifically the Federal Reserve Banks of the United States, were, and still are, permitted to issue bank notes. And a quick glance at any paper U.S. currency will reveal the words, "Federal Reserve Note". In other words, U.S. currency is a note issued by a Federal Reserve bank, a bank note.
Thus the panel reverses the trial court's denial and remands the case for a determination of whether Maynarich poses an unreasonable risk to public safety. Given the charge and the fact Maynarich was granted probation at his initial sentencing, I'll bet bank notes Maynarich gets his misdemeanor.
Tuesday, June 21, 2016
P v. Ochoa (6th Dist.) Conspiracy Conviction Reversed under PC 654 & Kellet.
Mr. Ochoa was a methamphetamine jobber. He bought powdered meth from Misters Menendez and Venegas, who obtained the meth in Mexico. Ochoa warehoused the meth, cut it, and then processed it from powder form to crystalline. Then he sold it to various members of the Nuestra Familia (NF) gang. Ochoa began his operation in 2005 and it continued until 2007, when one of his NF buyers was arrested. Ochoa wished to continue to sell to the NF, but no further sales occurred.
May 13, 2008, Ochoa was arrested and charged with conspiring with suppliers Menendez, Venegas, and others, to distribute meth in Santa Clara county. He took a plea bargain for 10 years.
One month later, Ochoa was indicted, along with members of the NF, with conspiracy to distribute methamphetamine in Santa Clara county. The defendants were also accused of committing their crimes with the intent to benefit the NF. Ochoa moved to dismiss the indictment on the grounds that the prosecution was barred by PC 654. The trial court denied the motion and Ochoa took a plea deal for 11 years with the understanding that his sentence on the first case would be reduced to four years and change, resulting in a total prison term of 15 years and change.
Ochoa appealed the denial of his PC 654 motion and the Sixth District reverses.
The opinion is rare in that it contains a coherent summary of PC 654's prohibition against multiple prosecutions. This particular topic is Delphic and unfortunately most opinions only result in a further scattering of temple remains so as to render the original edifice unidentifiable. But this opinion does an admirable job of reconstruction.
PC 654 says that when the State is aware, or should be aware, of more than one offense in which the same act or course of conduct plays a significant part, all offenses must be prosecuted in a single proceeding (absent exceptions inapplicable here). The opinion examines the facts in both Ochoa's cases and determines they involve the same course of conduct, to wit, the agreements between Ochoa and his suppliers and between Ochoa and the NF buyers. This analysis also contains an excellent synopsis of the law of conspiracy, another oft-misunderstood legal topic.
The upshot is that the prosecutor of the second case was aware of the first, the agreements overlapped each other as to time and place, and the same evidence needed to prosecute the first case necessarily supplied proof of the second. Therefore the crimes in the second prosecution were barred under PC 654.
For Mr. Ochoa, this means his sentence is back to 10 years.
May 13, 2008, Ochoa was arrested and charged with conspiring with suppliers Menendez, Venegas, and others, to distribute meth in Santa Clara county. He took a plea bargain for 10 years.
One month later, Ochoa was indicted, along with members of the NF, with conspiracy to distribute methamphetamine in Santa Clara county. The defendants were also accused of committing their crimes with the intent to benefit the NF. Ochoa moved to dismiss the indictment on the grounds that the prosecution was barred by PC 654. The trial court denied the motion and Ochoa took a plea deal for 11 years with the understanding that his sentence on the first case would be reduced to four years and change, resulting in a total prison term of 15 years and change.
Ochoa appealed the denial of his PC 654 motion and the Sixth District reverses.
The opinion is rare in that it contains a coherent summary of PC 654's prohibition against multiple prosecutions. This particular topic is Delphic and unfortunately most opinions only result in a further scattering of temple remains so as to render the original edifice unidentifiable. But this opinion does an admirable job of reconstruction.
PC 654 says that when the State is aware, or should be aware, of more than one offense in which the same act or course of conduct plays a significant part, all offenses must be prosecuted in a single proceeding (absent exceptions inapplicable here). The opinion examines the facts in both Ochoa's cases and determines they involve the same course of conduct, to wit, the agreements between Ochoa and his suppliers and between Ochoa and the NF buyers. This analysis also contains an excellent synopsis of the law of conspiracy, another oft-misunderstood legal topic.
The upshot is that the prosecutor of the second case was aware of the first, the agreements overlapped each other as to time and place, and the same evidence needed to prosecute the first case necessarily supplied proof of the second. Therefore the crimes in the second prosecution were barred under PC 654.
For Mr. Ochoa, this means his sentence is back to 10 years.
P v. Dunley (4th Dist., Div.2) Post-Rehearing, MDO Defendants Still Similarly Situated to NGI Defendants For Purposes of Compelled Testimony; Strict Scrutiny Applies
Back in April, I commented on the initial opinion in this case holding that MDO defendants are similarly situated to NGI defendants for purposes of compelled testimony. The initial opinion remanded the case to the trial court to give the State a chance to justify the disparate treatment (California statutes grant NGI defendants a right not to testify, not so for MDO defendants).
The State petitioned for rehearing to settle the issue of what standard the trial court is to apply. The petition for rehearing was granted and the Fourth District now holds that strict scrutiny is the applicable standard.
The State petitioned for rehearing to settle the issue of what standard the trial court is to apply. The petition for rehearing was granted and the Fourth District now holds that strict scrutiny is the applicable standard.
Monday, June 20, 2016
P v. Brown (4th Dist., Div.2) PC1170.1 Does Not Apply to Misdemeanor Sentences Ordered to Be Served Consecutive to Felony 1170(h) Sentences
An alternate title for this post is "Sometimes you might not want to request that lesser-included instruction."
Mr. Brown was charged with two counts of felony obstruction, PC 69. He took his case "to the box" and (at first glance) came out okay. The jury found him not guilty of one of the PC 69 counts, instead finding him guilty of the lesser-included crime of misdemeanor obstruction, PC 148(a). Brown was found guilty on the other felony obstruction and a prior prison term was found true.
At sentencing, Brown was sentenced to the upper term of three years on the PC 69, one year was added for the prior prison term, and a one year sentence on the misdemeanor PC 148(a) was ordered to run consecutive to the felony PC 69 sentence, for a total term of five years in the county jail (PC 69 being an 1170(h) felony). Brown appeals.
The Fourth District affirms.
The rub here is that by beating one of the felony PC 69 counts, Brown actually gets a longer sentence than the could have gotten had he gone down on two felony PC 69 counts. The reason for this is PC 1170.1, a statute that limits most consecutive felony sentences to "one-third of the middle term". Penal Code section 69 has a sentencing trial of 16 months, 2 years, or 3 years. One-third of two years is 8 months. So had Brown been found guilty of the two PC 69 felonies, the maximum time he could have spent in jail would have been four years and eight months (3 years on the first PC 69, 8 months on the second, plus one year for the prior prison term). By being found not guilty of the second PC 69 and instead guilty on the lesser included misdemeanor of 148(a), Brown's punishment is increased.
The panel finds nothing illegal about this. Despite a lengthy and discordant analysis, what the panel really says is that PC 1170.1 is not ambiguous; it applies only to felonies. Brown's argument, represented by the panel via a lengthy and discordant description, is really that the plain language's consequence is absurd, to wit, since the legislature has deemed the sole reason for incarceration is punishment, giving effect to the unambiguous language of 1170.1 results in a greater punishment for a crime that the legislature has deemed of lesser severity than the more severe offense of which Brown was acquitted.
But for some reason (maybe conscious omission), the panel avoids mentioning this paltry legal dilemma.
Mr. Brown was charged with two counts of felony obstruction, PC 69. He took his case "to the box" and (at first glance) came out okay. The jury found him not guilty of one of the PC 69 counts, instead finding him guilty of the lesser-included crime of misdemeanor obstruction, PC 148(a). Brown was found guilty on the other felony obstruction and a prior prison term was found true.
At sentencing, Brown was sentenced to the upper term of three years on the PC 69, one year was added for the prior prison term, and a one year sentence on the misdemeanor PC 148(a) was ordered to run consecutive to the felony PC 69 sentence, for a total term of five years in the county jail (PC 69 being an 1170(h) felony). Brown appeals.
The Fourth District affirms.
The rub here is that by beating one of the felony PC 69 counts, Brown actually gets a longer sentence than the could have gotten had he gone down on two felony PC 69 counts. The reason for this is PC 1170.1, a statute that limits most consecutive felony sentences to "one-third of the middle term". Penal Code section 69 has a sentencing trial of 16 months, 2 years, or 3 years. One-third of two years is 8 months. So had Brown been found guilty of the two PC 69 felonies, the maximum time he could have spent in jail would have been four years and eight months (3 years on the first PC 69, 8 months on the second, plus one year for the prior prison term). By being found not guilty of the second PC 69 and instead guilty on the lesser included misdemeanor of 148(a), Brown's punishment is increased.
The panel finds nothing illegal about this. Despite a lengthy and discordant analysis, what the panel really says is that PC 1170.1 is not ambiguous; it applies only to felonies. Brown's argument, represented by the panel via a lengthy and discordant description, is really that the plain language's consequence is absurd, to wit, since the legislature has deemed the sole reason for incarceration is punishment, giving effect to the unambiguous language of 1170.1 results in a greater punishment for a crime that the legislature has deemed of lesser severity than the more severe offense of which Brown was acquitted.
But for some reason (maybe conscious omission), the panel avoids mentioning this paltry legal dilemma.
Friday, June 17, 2016
P v. Ocegueda (6th Dist.) Trial Court Erred In Instructing Jury It Couldn't Consider Mental Health Evidence In Determining Whether Defendant Acted With Malice
At a New Year's Eve party, Mr. Ocegueda thrice shot another reveler. Ocegueda claimed he shot the victim because he believed the victim was reaching into his coat for a "strap" (gun). Other party-goers testified the victim had done nothing to provoke Ocegueda prior to the shooting. Ocegueda was charged with and convicted of, among other crimes, attempted murder. He appealed.
The Sixth District affirms, finding error, but deeming it harmless.
In the published portion of the opinion, the panel finds the trial court erred in instructing the jury on for what it could consider evidence of Ocegueda's mental health. Ocegueda had presented evidence he was mildly retarded, with an IQ between 65 and 74. His mental health expert opined that Ocegueda had a limited capacity for reasoning and functioned as a 13 year-old.
The trial court instructed the jury that it could only consider the mental health evidence in determining whether or not Oceguenda had formed the required specific intent for the crime of attempted murder. This was a misstatement of the law. Mental health evidence may also be used to determine whether or Oceguenda acted with malice. A subjective, honest, belief in the need for self defense, even when objectively unreasonable, negates malice and reduces an unlawful attempted killing from attempted murder to attempted voluntary manslaughter. The court gave the attempted voluntary manslaughter instruction, but then erroneously told the jury they could not consider the mental health evidence in deciding whether Oceguenda had an honest belief that the victim was about to pull a gun on him.
The panel's next step is questionable. Having determined the given instructions misstated the law, the panel finds the error was not prejudicial. The main reason given for this is that only Oceguenda testified that the victim looked as though he was about to pull a gun. The remaining witnesses did not. Therefore, the panel concludes, it is not reasonably probable the jury would have returned a more favorable verdict had it been correctly instructed. This reasoning suffers from a logical flaw. Voluntary manslaughter assumes the defendant's belief in the need for self defense is objectively unreasonable. The question at issue is whether the defendant's unreasonably held belief in the need for self defense was honest. That objective observers, the other witnesses, testified they saw nothing justifying Oceguneda's use of force is beside the point, and assumed by the instruction. The real issue is whether Oceguenda honestly believed he needed to defend himself from the victim. Thus, saying that erroneously telling the jury it could not consider Oceguenda's limited mental capacity in determining this issue was harmless seems result diven, IMEO.
The Sixth District affirms, finding error, but deeming it harmless.
In the published portion of the opinion, the panel finds the trial court erred in instructing the jury on for what it could consider evidence of Ocegueda's mental health. Ocegueda had presented evidence he was mildly retarded, with an IQ between 65 and 74. His mental health expert opined that Ocegueda had a limited capacity for reasoning and functioned as a 13 year-old.
The trial court instructed the jury that it could only consider the mental health evidence in determining whether or not Oceguenda had formed the required specific intent for the crime of attempted murder. This was a misstatement of the law. Mental health evidence may also be used to determine whether or Oceguenda acted with malice. A subjective, honest, belief in the need for self defense, even when objectively unreasonable, negates malice and reduces an unlawful attempted killing from attempted murder to attempted voluntary manslaughter. The court gave the attempted voluntary manslaughter instruction, but then erroneously told the jury they could not consider the mental health evidence in deciding whether Oceguenda had an honest belief that the victim was about to pull a gun on him.
The panel's next step is questionable. Having determined the given instructions misstated the law, the panel finds the error was not prejudicial. The main reason given for this is that only Oceguenda testified that the victim looked as though he was about to pull a gun. The remaining witnesses did not. Therefore, the panel concludes, it is not reasonably probable the jury would have returned a more favorable verdict had it been correctly instructed. This reasoning suffers from a logical flaw. Voluntary manslaughter assumes the defendant's belief in the need for self defense is objectively unreasonable. The question at issue is whether the defendant's unreasonably held belief in the need for self defense was honest. That objective observers, the other witnesses, testified they saw nothing justifying Oceguneda's use of force is beside the point, and assumed by the instruction. The real issue is whether Oceguenda honestly believed he needed to defend himself from the victim. Thus, saying that erroneously telling the jury it could not consider Oceguenda's limited mental capacity in determining this issue was harmless seems result diven, IMEO.
Thursday, June 16, 2016
P v. Montgomery (4th Dist., Div.3) "Prior" in PC 1170.18(i) Means "Prior to the Petition"
Mr. Montgomery was arrested for possession of cocaine in 1988. In 1989, he was arrested for attempted murder. Subsequently, Montgomery and the State entered into a plea bargain where Montgomery would simultaneously plead guilty to the 1989 attempted murder and the 1988 possession of cocaine in exchange for the State moving to dismiss other pending charges and agreeing to run the cocaine sentence concurrent with the attempted murder sentence. Montgomery served both sentences and was released.
In December of 2014, Montgomery filed a PC 1170.18 petition to reduce his possession of cocaine conviction to a misdemeanor as cocaine possession was one of the crimes made a misdemeanor by Proposition 47 on November 4, 2014. The trial court ruled Montgomery ineligible for the relief requested on the basis he had a prior conviction for attempted murder. Montgomery appealed.
The Fourth District affirms the denial.
The issue is a textual one. PC 1170.18(i) states, in pertinent part, "[Relief] shall not apply to persons who have one or more prior convictions [for certain offenses] . . . ." One of the certain offenses is attempted murder. Thus the issue is whether Montgomery's attempted murder conviction is a "prior conviction", an issue whose resolution depends on what subsequent event is implied. Or, as the opinion writes, "prior to what"?
If "prior" means "prior to the conviction for which relief is sought" then Montgomery wins. His attempted murder conviction was not prior to his cocaine conviction; they were simultaneous. But if "prior" means "prior to the filing of the 1170.18 petition", Montgomery is sunk. The opinion chooses the latter.
The opinion does a decent job to resolve this ambiguity. It is more difficult than it appears as Proposition 47's historical documents (understandably) dedicate the majority of space to the issue of early release of prisoners, giving short shrift to the topic of relief for completed sentences. The anchor of the opinion is ballot language which states that murderers and rapists will not benefit from Proposition 47.
IMEO, this is the type of issue which begs for a textual examination. Let me explain. The word "shall" is a modal verb, expressing a future time. "Have" is a present tense verb. If something "shall not apply to persons who have . . . .", does not this language express the intent that at the relevant time in the future, the thing shall not apply to people who have, at that future time, the specified status? As it would be anachronistic to find the time of the conviction for which relief is being sought as the "relevant future event" (it necessarily will predate November 4, 2014), the only coherent interpretation is that the "relevant future event" is the filing of the 1170.18 petition.
In December of 2014, Montgomery filed a PC 1170.18 petition to reduce his possession of cocaine conviction to a misdemeanor as cocaine possession was one of the crimes made a misdemeanor by Proposition 47 on November 4, 2014. The trial court ruled Montgomery ineligible for the relief requested on the basis he had a prior conviction for attempted murder. Montgomery appealed.
The Fourth District affirms the denial.
The issue is a textual one. PC 1170.18(i) states, in pertinent part, "[Relief] shall not apply to persons who have one or more prior convictions [for certain offenses] . . . ." One of the certain offenses is attempted murder. Thus the issue is whether Montgomery's attempted murder conviction is a "prior conviction", an issue whose resolution depends on what subsequent event is implied. Or, as the opinion writes, "prior to what"?
If "prior" means "prior to the conviction for which relief is sought" then Montgomery wins. His attempted murder conviction was not prior to his cocaine conviction; they were simultaneous. But if "prior" means "prior to the filing of the 1170.18 petition", Montgomery is sunk. The opinion chooses the latter.
The opinion does a decent job to resolve this ambiguity. It is more difficult than it appears as Proposition 47's historical documents (understandably) dedicate the majority of space to the issue of early release of prisoners, giving short shrift to the topic of relief for completed sentences. The anchor of the opinion is ballot language which states that murderers and rapists will not benefit from Proposition 47.
IMEO, this is the type of issue which begs for a textual examination. Let me explain. The word "shall" is a modal verb, expressing a future time. "Have" is a present tense verb. If something "shall not apply to persons who have . . . .", does not this language express the intent that at the relevant time in the future, the thing shall not apply to people who have, at that future time, the specified status? As it would be anachronistic to find the time of the conviction for which relief is being sought as the "relevant future event" (it necessarily will predate November 4, 2014), the only coherent interpretation is that the "relevant future event" is the filing of the 1170.18 petition.
Wednesday, June 15, 2016
P v. Eulian (2nd Dist., Div.5) Calcrim 3472 Correctly States the Law Unless There Is An Escalation to Deadly Force.
Mr. Eulian lived with his mom in his mom's 4-plex. One Mrs. Stafford was the neighborhood "cat lady". Stafford fed a clowder of neighborhood ferals in the alley behind Eulian's mom's house. This unsurprisingly angered Eulian and his mom. Eulian's mom's yard was a mess of feral cat crap. Some cats died and decayed in the crawl space under the home. Finally, Eulian's mother had an old, blind dog, that the stray cats would attack.
The pot came to a boil one night when Stafford was in the alley feeding the strays. Eulian confronted Stafford. Profanity gave way to the throwing of kibble and a mutual series of slaps. Mom entered into the fray, exchanging slaps with Stafford. The fracas culminated in Eulian pulling Stafford from her car and punching her unconscious. Following a hung jury, a retrial ended in Eulian being convicted of felony assault and causing great bodily injury. He appeals.
A Second District panel affirms.
The published portion of the opinion deals with Calcrim instruction number 3472 which states that a person has no right to self defense if he provokes a fight or quarrel with the intent to create an excuse to use force. Eulian contends this instruction misstates the law. His argument is based upon a case, P v. Ramirez, where some young gangsters intended to provoke a fistfight with a rival gang. The rivals responded to this instigation with deadly force, which the instigators met with same. The Ramirez court stated that Calcrim 3472 does not apply when the instigator intends to instigate a non-deadly fight and the rival responds by sudden escalation to deadly force.
The opinion finds that the facts here do not invoke the Ramirez exception to Calcrim 3472. Thus the instruction correctly stated the law as it applied to Eulian's situation.
Two brief comments. First, I believe there is a typo in the first sentence of the second paragraph on page three. Stafford was the "cat lady", not Fontaine (Eulian's mother). Second, the instruction, and the opinion, do not appear to mirror the holding that formed the basis for the instruction. The holding in P v. Enraca applies when the adversary's attack is legally justified. The instruction uses the word "provoke" which is not coextensive with legal justification. You can provoke fisticuffs using taunts and insults, but taunts and insults do not constitute legal justification for the use of force. Based on this distinction Calcrim 3472 would appear to possibly be over broad.
The pot came to a boil one night when Stafford was in the alley feeding the strays. Eulian confronted Stafford. Profanity gave way to the throwing of kibble and a mutual series of slaps. Mom entered into the fray, exchanging slaps with Stafford. The fracas culminated in Eulian pulling Stafford from her car and punching her unconscious. Following a hung jury, a retrial ended in Eulian being convicted of felony assault and causing great bodily injury. He appeals.
A Second District panel affirms.
The published portion of the opinion deals with Calcrim instruction number 3472 which states that a person has no right to self defense if he provokes a fight or quarrel with the intent to create an excuse to use force. Eulian contends this instruction misstates the law. His argument is based upon a case, P v. Ramirez, where some young gangsters intended to provoke a fistfight with a rival gang. The rivals responded to this instigation with deadly force, which the instigators met with same. The Ramirez court stated that Calcrim 3472 does not apply when the instigator intends to instigate a non-deadly fight and the rival responds by sudden escalation to deadly force.
The opinion finds that the facts here do not invoke the Ramirez exception to Calcrim 3472. Thus the instruction correctly stated the law as it applied to Eulian's situation.
Two brief comments. First, I believe there is a typo in the first sentence of the second paragraph on page three. Stafford was the "cat lady", not Fontaine (Eulian's mother). Second, the instruction, and the opinion, do not appear to mirror the holding that formed the basis for the instruction. The holding in P v. Enraca applies when the adversary's attack is legally justified. The instruction uses the word "provoke" which is not coextensive with legal justification. You can provoke fisticuffs using taunts and insults, but taunts and insults do not constitute legal justification for the use of force. Based on this distinction Calcrim 3472 would appear to possibly be over broad.
Tuesday, June 14, 2016
P v. Hall (1st. Dist., Div.5) No Abuse of Discretion in Denial of PC 1170.18 Petition Upon Finding Defendant Posed An Unreasonable Risk to Public Safety
Mr. Hall put a knife to the belly of a woman and demanded her purse. She refused to give up her purse so Hall wrestled it away from her and completed a short spring before he was caught.
For this Hall was charged with PC 211, robbery. He was also alleged to have suffered two prior strike offenses and to have served five prior prison terms. Had he been convicted as charged he could have been sentenced to 30 years to life.
Instead, Hall took a plea deal for five years; the robbery was reduced to grand theft from a person, PC487(c) (three years), with admissions to two prior prison terms (two years). While Hall was in prison, the California electorate passed Proposition 47 which reduced grand theft under 950 dollars to a misdemeanor. Hall petitioned for his 487(c) conviction to be reduced to a misdemeanor under PC 1170.18. If successful, Hall's maximum sentence would be six months (recall his initial exposure was 30-life).
The trial court denied the petition on the grounds that, if the petition was granted, there was an unreasonable risk that Hall would commit a homicide or other violent felony punishable by life in prison. Hall appealed.
The First District affirms the denial, holding the trial court did not abuse its discretion in making its finding.
I'm not sure why this opinion is published. It doesn't appear to involve any legal novelty. The statutory language is vague enough to encompass Mr. Hall, given his history and the present offense. Maybe it was published to establish some judicial benchmark (pun intended) for trial courts by stating what category of factual scenarios will justify a finding of "unreasonable danger".
I do see one possible future issue. One of the categories of offenses at issue in 1170.18 petitions is "serious/ or violent offenses punishable by life". What if a defendant has two prior strikes? In such a case, any serious/ or violent offense is punishable by life due to this defendant's priors. This is not necessarily the case for someone without such priors. For instance, second degree robbery, PC211, if committed by someone with two prior strikes, is punishable by life. But when committed by someone without any prior felony convictions, is punishable, at most, by five years. Is it okay to deny the former defendant's PC 1170.18 petition on the ground of an unreasonable risk he will commit a future PC 211?
For this Hall was charged with PC 211, robbery. He was also alleged to have suffered two prior strike offenses and to have served five prior prison terms. Had he been convicted as charged he could have been sentenced to 30 years to life.
Instead, Hall took a plea deal for five years; the robbery was reduced to grand theft from a person, PC487(c) (three years), with admissions to two prior prison terms (two years). While Hall was in prison, the California electorate passed Proposition 47 which reduced grand theft under 950 dollars to a misdemeanor. Hall petitioned for his 487(c) conviction to be reduced to a misdemeanor under PC 1170.18. If successful, Hall's maximum sentence would be six months (recall his initial exposure was 30-life).
The trial court denied the petition on the grounds that, if the petition was granted, there was an unreasonable risk that Hall would commit a homicide or other violent felony punishable by life in prison. Hall appealed.
The First District affirms the denial, holding the trial court did not abuse its discretion in making its finding.
I'm not sure why this opinion is published. It doesn't appear to involve any legal novelty. The statutory language is vague enough to encompass Mr. Hall, given his history and the present offense. Maybe it was published to establish some judicial benchmark (pun intended) for trial courts by stating what category of factual scenarios will justify a finding of "unreasonable danger".
I do see one possible future issue. One of the categories of offenses at issue in 1170.18 petitions is "serious/ or violent offenses punishable by life". What if a defendant has two prior strikes? In such a case, any serious/ or violent offense is punishable by life due to this defendant's priors. This is not necessarily the case for someone without such priors. For instance, second degree robbery, PC211, if committed by someone with two prior strikes, is punishable by life. But when committed by someone without any prior felony convictions, is punishable, at most, by five years. Is it okay to deny the former defendant's PC 1170.18 petition on the ground of an unreasonable risk he will commit a future PC 211?
Monday, June 13, 2016
Brown v. Superior Court (Cal. Supreme Ct.) Amendments to "The Justice and Rehabilitation Act" Were Reasonably Germane to Its Original Purpose
This case, Brown (as in Governor Jerry Brown) v. Superior Court, delves into the murky waters of California voter initiatives. The Governor emerges with a nice fat catfish on hook while the California District Attorneys Association ends up with an old tire at the end of its line.
California initiatives are governed by the Elections Code. When an initiative is proposed there is a required 30 day period where the public may comment upon the proposed initiative. Once this 30 day period has expired, the supporters may begin to collect the signatures required to place the initiative on the ballot.
But what if the supporters wish to amend the initiative after the 30 day comment period has expired? Is another 30 days required for public comment on the amendments? The answer can be found in Election Code section 9002, which states that if the amendment is reasonably germane to the original purpose of the initiative, no additional comment period is required. If the amendment is not reasonably germane to the original purpose, another 30 day period is required.
Here, the original Justice and Rehabilitation Act (JRA) initiative proposal contained four principal items. [1] Judicial transfer for all crimes committed by juveniles; [2] Ability for juveniles convicted in adult court to petition for juvenile dispositions; [3] Elimination of the prohibition against juvenile case sealing; and, [4] Modified parole suitability procedures for prisoners who were under 23 at the time of their offense. This version of the JRA had a 30 day comment period (no comments were made). After the comment period expired, the JRA was renamed the Public Safety and Rehabilitation Act of 2016, items [2] and [3] were deleted, and [4] was amended to modify parole procedures for all prisoners. The Attorney General found the amendments were germane to the original purpose of the JRA and allowed the gathering of signatures to begin. The California District Attorneys Association (CDAA) petitioned for a writ of mandate directing the AG to reject the amendments. The trial court granted the CDAA's petition, finding the amendments did not fall under section 9002.
The Governor seeks emergency relief from the Supreme Court and gets it as the California Supreme Court orders the trial court to vacate its previous ruling, finding the amendments are "germane to the original purpose".
Justice Corrigan writes the opinion from which Justice Chin dissents. The upshot is that the California electorate will have another opportunity to amend its criminal procedures come November 2016.
California initiatives are governed by the Elections Code. When an initiative is proposed there is a required 30 day period where the public may comment upon the proposed initiative. Once this 30 day period has expired, the supporters may begin to collect the signatures required to place the initiative on the ballot.
But what if the supporters wish to amend the initiative after the 30 day comment period has expired? Is another 30 days required for public comment on the amendments? The answer can be found in Election Code section 9002, which states that if the amendment is reasonably germane to the original purpose of the initiative, no additional comment period is required. If the amendment is not reasonably germane to the original purpose, another 30 day period is required.
Here, the original Justice and Rehabilitation Act (JRA) initiative proposal contained four principal items. [1] Judicial transfer for all crimes committed by juveniles; [2] Ability for juveniles convicted in adult court to petition for juvenile dispositions; [3] Elimination of the prohibition against juvenile case sealing; and, [4] Modified parole suitability procedures for prisoners who were under 23 at the time of their offense. This version of the JRA had a 30 day comment period (no comments were made). After the comment period expired, the JRA was renamed the Public Safety and Rehabilitation Act of 2016, items [2] and [3] were deleted, and [4] was amended to modify parole procedures for all prisoners. The Attorney General found the amendments were germane to the original purpose of the JRA and allowed the gathering of signatures to begin. The California District Attorneys Association (CDAA) petitioned for a writ of mandate directing the AG to reject the amendments. The trial court granted the CDAA's petition, finding the amendments did not fall under section 9002.
The Governor seeks emergency relief from the Supreme Court and gets it as the California Supreme Court orders the trial court to vacate its previous ruling, finding the amendments are "germane to the original purpose".
Justice Corrigan writes the opinion from which Justice Chin dissents. The upshot is that the California electorate will have another opportunity to amend its criminal procedures come November 2016.
Friday, June 3, 2016
P v. Castillolopez (Cal. SC) An Open Swiss Army Knife Is Not a "Dirk or Dagger" Under PC 21310
Mr. Castillolopez had a Swiss Army camping knife in his pocket. The blade was in the open position. For this, he was convicted of the California felony of possessing a concealed dirk or dagger, PC 21310. For this he was sentenced to 16 months in prison.
The Court of Appeal reversed, holding that the Swiss Army knife did not constitute a "dirk or dagger" as that term is defined in the penal code. The California Supreme Court granted review and affirms the Court of Appeal's decision.
California's penal code criminalizes the possession of innumerable items that are, or resemble, archaic weapons . Laughably, the statutory language often prefaces these items with the phrase, "commonly known as". For example, it is a felony to possess these "commonly known" items: shobi-zue, sandbag, slungshot, sandclub, sap, blackjack, billy, shuriken, nunchaku, dirks, and daggers. I assume these laws were passed by our learned legislature in response to the public outcry following a mass barrage of killings by shobi-zue and blackjack.
These laws become more burlesque when the legislature defines these items and California's appellate courts interpret these definitions. If you keep a baseball bat behind your door for self defense, you are possessing a "billy" a felony for which you can go away for three years. When a young man who lives in a bad part of town tells a policeman that he would, if necessary, defend himself with his bike lock, that bike lock legally constitutes a "slungshot" and a felony conviction is legitimate (think I'm joking, read P v. Fannin 91 Cal. App. 4th 1399- Mr. Fannin got 16 months in prison for his bike lock).
Back to Mr. Castillolopez's conviction for carrying a concealed dirk or dagger. The legislature has defined "dirk or dagger" as follows.
Luckily for Castillolopez, his item, a folding knife, is given its own set of criteria. The blade must be exposed and locked into position. Since his blade was open, his fate rests on whether the blade was "locked into place". Like most camping knifes, this one operated using a spring. To open the blade, the spring tension had to be overcome; likewise for closing the knife. The policeman who testified at the trial admitted that if you tried to stab a firm object using the knife, the application of force would likely cause the blade to revert to the closed position.
The opinion holds the definition of"locked" as "immovable or moved only with greatest difficulty". From this, the opinion holds that a folding knife that lacks a design that prevents the accidental collapse of the knife while in use, it is not "locked". Since this knife had no such mechanism, it was not "locked", hence not a dirk or dagger.
The larger question looming is whether the Second Amendment applies to any (or most or all) of the weapons criminalized in California. Are they "arms" commonly used for self defense? The Constitution prevents California from sending me to prison for keeping a pistol in my home for defense. If I am unable to afford a gun does not the Constitution confer upon me a right to keep a baseball bat near by bedroom door instead? Not in the Golden State (read P v. Liscotti, 219 Cal.App.4th Supp. 1).
A B
C
Bonus Quiz: Possessing any of the above items is a felony in California. One is a shobi-zue, one is a slungshot, and one a shuriken. Do you know which is which?
The Court of Appeal reversed, holding that the Swiss Army knife did not constitute a "dirk or dagger" as that term is defined in the penal code. The California Supreme Court granted review and affirms the Court of Appeal's decision.
California's penal code criminalizes the possession of innumerable items that are, or resemble, archaic weapons . Laughably, the statutory language often prefaces these items with the phrase, "commonly known as". For example, it is a felony to possess these "commonly known" items: shobi-zue, sandbag, slungshot, sandclub, sap, blackjack, billy, shuriken, nunchaku, dirks, and daggers. I assume these laws were passed by our learned legislature in response to the public outcry following a mass barrage of killings by shobi-zue and blackjack.
These laws become more burlesque when the legislature defines these items and California's appellate courts interpret these definitions. If you keep a baseball bat behind your door for self defense, you are possessing a "billy" a felony for which you can go away for three years. When a young man who lives in a bad part of town tells a policeman that he would, if necessary, defend himself with his bike lock, that bike lock legally constitutes a "slungshot" and a felony conviction is legitimate (think I'm joking, read P v. Fannin 91 Cal. App. 4th 1399- Mr. Fannin got 16 months in prison for his bike lock).
Back to Mr. Castillolopez's conviction for carrying a concealed dirk or dagger. The legislature has defined "dirk or dagger" as follows.
As used in this part, “dirk” or “dagger” means a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death. A nonlocking folding knife, a folding knife that is not prohibited by Section 21510, or a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed and locked into position.Pretty broad. An exacto knife? A sharpened pencil? A utility knife? A pair of scissors? You may be a felon and not know it.
Luckily for Castillolopez, his item, a folding knife, is given its own set of criteria. The blade must be exposed and locked into position. Since his blade was open, his fate rests on whether the blade was "locked into place". Like most camping knifes, this one operated using a spring. To open the blade, the spring tension had to be overcome; likewise for closing the knife. The policeman who testified at the trial admitted that if you tried to stab a firm object using the knife, the application of force would likely cause the blade to revert to the closed position.
The opinion holds the definition of"locked" as "immovable or moved only with greatest difficulty". From this, the opinion holds that a folding knife that lacks a design that prevents the accidental collapse of the knife while in use, it is not "locked". Since this knife had no such mechanism, it was not "locked", hence not a dirk or dagger.
The larger question looming is whether the Second Amendment applies to any (or most or all) of the weapons criminalized in California. Are they "arms" commonly used for self defense? The Constitution prevents California from sending me to prison for keeping a pistol in my home for defense. If I am unable to afford a gun does not the Constitution confer upon me a right to keep a baseball bat near by bedroom door instead? Not in the Golden State (read P v. Liscotti, 219 Cal.App.4th Supp. 1).
A B
C
Bonus Quiz: Possessing any of the above items is a felony in California. One is a shobi-zue, one is a slungshot, and one a shuriken. Do you know which is which?
Thursday, June 2, 2016
P v. Acosta (2nd Dist. Div.6) PC 1170.18 Relief Has No Effect on PC 667.5(b), Regardless of Timing.
In early 2014, Mr. Acosta pleaded guilty, via three cases, to three felonies. He also admitted having served six prior prison terms under PC 667.5(b) and having committed one of the felonies while out on bail under PC 12022.1(b). He was sentenced to 13 years in prison.
Following the November 2014 passage of Proposition 47, Acosta petitioned the trial court to reduce two of his three felonies in the instant case to misdemeanors. He also petitioned the trial court to reduce to misdemeanors, three of the six cases for which he had served the prior prison terms that formed the basis for his 667.5(b) review. The trial court granted all petitions. It then resentenced Acosta on the remaining felony to two years, adding six years for the prior prison terms, for a total of eight years.
Acosta appeals on two grounds. First, that the six prior prison term enhancements had been dismissed on the case containing the surviving felony. Second, that three of the six prior prison terms could no qualified under 667.5(b) because they were reduced to misdemeanors.
The Second District affirms.
The first portion of the opinion is solid judicial writing. Prior prison terms, under 667.5(b), may only be applied once in an aggregate sentence. Therefore, while the court said it "dismissed" the 667.5(b) in two of the three cases, it really only followed the rule that they could only apply once to the total sentence. Since the 667.5(b) enhancements were still valid as to the surviving felony, the trial court did nothing wrong in applying them upon resentencing.
So far for the good.
The second portion is very disappointing, not because of the result (which is valid IMEO), but because the analysis is nothing more than a tautology surrounded by a false statement regarding holdings by sister courts (and a typo).
The issue is what effect, if any, have the misdemeanor reductions in the three 667.5(b) cases. First, the opinion states the following.
Following this proud bit of casuistry, the opinion states, in unlettered English, that its forthcoming statutory interpretation is "straight forward" (straightforward is a closed compound noun). The subsequent interpretation is indeed worthy of its introduction. The phrase to be interpreted is:
Again, the result is fine, it comports with all the previously published cases (even Abdallah, as the reductions here were ex post to the surviving felony). But the analysis is disturbingly inadequate. Read the statutory analysis in Abdallah, Carrera, and Valenzuela, and tell me if you disagree.
Following the November 2014 passage of Proposition 47, Acosta petitioned the trial court to reduce two of his three felonies in the instant case to misdemeanors. He also petitioned the trial court to reduce to misdemeanors, three of the six cases for which he had served the prior prison terms that formed the basis for his 667.5(b) review. The trial court granted all petitions. It then resentenced Acosta on the remaining felony to two years, adding six years for the prior prison terms, for a total of eight years.
Acosta appeals on two grounds. First, that the six prior prison term enhancements had been dismissed on the case containing the surviving felony. Second, that three of the six prior prison terms could no qualified under 667.5(b) because they were reduced to misdemeanors.
The Second District affirms.
The first portion of the opinion is solid judicial writing. Prior prison terms, under 667.5(b), may only be applied once in an aggregate sentence. Therefore, while the court said it "dismissed" the 667.5(b) in two of the three cases, it really only followed the rule that they could only apply once to the total sentence. Since the 667.5(b) enhancements were still valid as to the surviving felony, the trial court did nothing wrong in applying them upon resentencing.
So far for the good.
The second portion is very disappointing, not because of the result (which is valid IMEO), but because the analysis is nothing more than a tautology surrounded by a false statement regarding holdings by sister courts (and a typo).
The issue is what effect, if any, have the misdemeanor reductions in the three 667.5(b) cases. First, the opinion states the following.
This issue is a familiar one as there has been a spate of appellate opinions, unanimously holding that a prior prison term 6 enhancement is not affected by Proposition 47. (See e.g., People v. Valenzuela (2016) formerly 244 Cal.App.4th 692, review granted Mar. 7, 2016, S232900.)This is just wrong (and we expect Appellate justices to know so). P v. Abdallah, 246 Cal. App. 4th 736, held that when a Proposition 47 reduction occurs before the commission of a felony, an otherwise qualifying prison term served for the reduced offense can no longer be the basis for a 667.5(b) enhancement.
Following this proud bit of casuistry, the opinion states, in unlettered English, that its forthcoming statutory interpretation is "straight forward" (straightforward is a closed compound noun). The subsequent interpretation is indeed worthy of its introduction. The phrase to be interpreted is:
Any felony conviction that is . . . designated as a misdemeanor . . . shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm . . . .With no examination of prior opinions on the issue and no examination of analogous statutes (PC 17B), the opinion proclaims the unambiguous meaning of "for all purposes" is "for all purposes pertaining only to the simple status of the conviction". The panel justifies adding this qualifying phrase to the statute's language by invoking the judicial cannon that courts should not read into statutes language that is not there (I jest not). This entree of haute judicia is then garnished with the indefensible and imbecilic argument that lawmakers may not pass laws that result in a "windfall" for a defendant.
Again, the result is fine, it comports with all the previously published cases (even Abdallah, as the reductions here were ex post to the surviving felony). But the analysis is disturbingly inadequate. Read the statutory analysis in Abdallah, Carrera, and Valenzuela, and tell me if you disagree.
Wednesday, June 1, 2016
P v. Franklin (SC of California) Senate Bill 260 Made a Mandatory 50-Life Sentence for a Juvenile Murder Constitutional.
When he was 16, Master Franklin killed another teenager by shooting him. Franklin was tried and convicted as an adult. The trial court, mandated by California law, sentenced Franklin to 50 to life.
After Franklin's conviction, the United States Supreme Court, in Miller v. Alabama, held that a mandatory life sentence without the possibility of parole (LWOP) for a crime committed by a minor violates the Eighth Amendment to the U.S. Constitution. The California Supreme Court later held that a sentence which is the functional equivalent to life without parole (the person is likely to die before reaching the earliest parole eligibility date) is considered a LWOP sentence for purposes of the Eighth Amendment.
Franklin appeals his sentence arguing that his 50-life sentence is the functional equivalent of a LWOP sentence and thus violates the Eighth Amendment.
Our state's Supreme Court holds that Senate Bill 260 (SB 260), passed after the U.S. Supreme Court's opinion in Miller, renders Franklin's sentence constitutional.
Applied to Franklin's case, SB260 means Franklin is entitled to a parole hearing during his 25th year of incarceration. The court holds that the question of whether the mandated 50-life sentence is the functional equivalent to LWOP is moot because, by operation of law, the effective sentence is no longer 50-life, rather 25-life.
However, because, given the mandatory nature of his sentence when opposed, Franklin had no incentive to place mitigating evidence on the record at the time of his sentencing, the case is remanded to give Franklin that opportunity.
After Franklin's conviction, the United States Supreme Court, in Miller v. Alabama, held that a mandatory life sentence without the possibility of parole (LWOP) for a crime committed by a minor violates the Eighth Amendment to the U.S. Constitution. The California Supreme Court later held that a sentence which is the functional equivalent to life without parole (the person is likely to die before reaching the earliest parole eligibility date) is considered a LWOP sentence for purposes of the Eighth Amendment.
Franklin appeals his sentence arguing that his 50-life sentence is the functional equivalent of a LWOP sentence and thus violates the Eighth Amendment.
Our state's Supreme Court holds that Senate Bill 260 (SB 260), passed after the U.S. Supreme Court's opinion in Miller, renders Franklin's sentence constitutional.
Applied to Franklin's case, SB260 means Franklin is entitled to a parole hearing during his 25th year of incarceration. The court holds that the question of whether the mandated 50-life sentence is the functional equivalent to LWOP is moot because, by operation of law, the effective sentence is no longer 50-life, rather 25-life.
However, because, given the mandatory nature of his sentence when opposed, Franklin had no incentive to place mitigating evidence on the record at the time of his sentencing, the case is remanded to give Franklin that opportunity.
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