Back in 2012, Mr. Adelmann was convicted of felony narcotics possession, H&S 11350, in San Diego County. He was placed on probation. Adelmann then moved to Riverside county and full jurisdiction over his case was transferred to Riverside County pursuant to PC 1203.9.
In 2015, Adelmann tried to file a PC 1170.18 petition in San Diego County. The San Diego Court stated it had no case file and would not hear his petition. A call to the San Diego public defender's office confirmed that San Diego courts do not hear 1170.18 petitions on cases that had been transferred under 1203.9.
So, Adelmann filed his petition in Riverside county and a Riverside county Superior Court Judge granted relief. The State appealed, arguing Riverside county had no jurisdiction to hear Adelmann's petition.
The Fourth District affirms, disagreeing with the First District in P v. Curry.
When Bush v. Gore was being decided in 2000, the great Judge Richard Posner asserted that it was less important what decision be made than that a decision be made. I think the same about this issue. Whether the court determines it to be the transferring court, the transferee court, or either, people just need to know where they can file their petitions.
I had no qualms with the decision in P v. Curry, although I did have an issue with the analysis. Likewise here I have no problem with the result (despite it being contrary to Curry). What sticks in my craw is that this opinion misstates the facts in Curry to make the First District's opinion appear more legitimate than it actually is. The transfer at issue in Curry was not a PRCS transfer, it was a 1203.9 probation transfer. To the extent this opinion states otherwise (perhaps in undeserved deference to its sister court) it should be corrected.
So now after two opinions, one holding the transferring court is the proper venue for 1170.18 petitions and the other holding the transferee court is the proper venue, what is a petitioner to do?
Wednesday, August 31, 2016
P v. Ochoa (2nd Dist. Div.1) Attempted Extortion Verdict Reversed; Information Specified Wrong Victim
Two men were operating a food truck in Los Angeles. One of the men was doing the cooking; the other was serving and manning the register. Mr. Ochoa, a member of the Mara Salvatrucha gang, approached the server, via the truck's side window, and demanded "protection money". The server told Ochoa to come back the next day to talk to the owner of the food truck. While this conversation occurred, the cook was busy at work and heard nothing. Ochoa left. Five minutes later Ochoa came back and, without saying a word, shot the cook in the face. Fortunately the cook survived.
Ochoa was charged, via an information, with attempting to murder the cook and attempting to extort the cook, along with various gun and gang enhancements. A jury returned verdicts of guilty to both counts and found true each enhancement. Ochoa appealed his conviction for attempted extortion.
The Second District, having no choice, reverses on the attempted extortion
As this case involves no novel issue of law, I assume it was published as a warning of sorts. The State alleged in the information that Ochoa tried to extort the cook. Extortion, under these facts, is obtaining property from someone, against their will, by an improper threat. Ochoa did try to extort someone, the cashier (or possibly the truck's owner). But as he said nothing, directly or indirectly, to the cook before shooting him, Ochoa did not try to extort the cook.
Had the State's attorney recognized this pleading error and moved to change the information to designate the server (or the owner) as the victim of attempted extortion, the panel would have affirmed the conviction. But, the State overlooked this, and, as the opinion points out, an appellate court has not the power to amend an information at this late stage.
The upshot is Ochoa's sentence is reduced from 52-life to 40-life.
More important, hopefully the cook is doing okay and getting assistance from the State's victim compensation program.
Ochoa was charged, via an information, with attempting to murder the cook and attempting to extort the cook, along with various gun and gang enhancements. A jury returned verdicts of guilty to both counts and found true each enhancement. Ochoa appealed his conviction for attempted extortion.
The Second District, having no choice, reverses on the attempted extortion
As this case involves no novel issue of law, I assume it was published as a warning of sorts. The State alleged in the information that Ochoa tried to extort the cook. Extortion, under these facts, is obtaining property from someone, against their will, by an improper threat. Ochoa did try to extort someone, the cashier (or possibly the truck's owner). But as he said nothing, directly or indirectly, to the cook before shooting him, Ochoa did not try to extort the cook.
Had the State's attorney recognized this pleading error and moved to change the information to designate the server (or the owner) as the victim of attempted extortion, the panel would have affirmed the conviction. But, the State overlooked this, and, as the opinion points out, an appellate court has not the power to amend an information at this late stage.
The upshot is Ochoa's sentence is reduced from 52-life to 40-life.
More important, hopefully the cook is doing okay and getting assistance from the State's victim compensation program.
Tuesday, August 30, 2016
In re C.B. & In re C.H. (1st. Dist., Div.3) PC 1170.18 Relief For a Juvenile Does Not Require DNA Expungement
The operative facts in both these cases are the same. A juvenile was found to fall within the jurisdiction of the juvenile court for his commission of a felony crime. After the passage of Proposition 47 in 2014, each boy had his felony recalled and was disposed (sentenced) as a misdemeanant. Both boys asked the juvenile court to expunge their DNA from the State's database because, they argued, they met the criteria for expungement under PC 299. The juvenile courts denied the requests and both boys appealed.
The First District affirms in both matters.
When I first began this blog, an experienced appellate attorney told me that California's Courts of Appeal resided within the slum of legal reasoning. If the sole evidence were these two opinions, I would be forced to agree.
The issue concerns the intersection of PC 1170.18 and PC 299. Both panels are eager to affirm the respective denials and both do so sloppily. It is difficult to pick a loser here.
In re C.B., the panel affirms the denial by analogy to PC 17b. Section 17b is a code section that deals with crimes that are chargeable, ,and punishable, as either felonies or misdemeanors at the respective discretions of the trial court and the State. In re C.H., the affirmance is based on the fact the legislature, after C.H.'s denial, amended PC 299 in a way which arguably violates Section 15 of Proposition 47, and hence the California Constitution. This issue is, to no one's surprise, ignored.
The central problem with both opinions is that they never quote the operative text of 1170.18. Section 1170.18 provides a vehicle for a felon to petition to have his sentence RECALLED and to be resentenced as a misdemeanant. "Recalled", per Blacks Law Dictionary, means to cancel or reverse. Both opinions never mention this operative word, "recalled", instead substituting their own word, "redesignated", a word that does not appear in 1170.18.
Once having executed this shameful substitution, the panel in C.B. can employ their 17b analogy without appearing ridiculous. It is freed from having to recognize that the relief available in the two different code sections is fundamentally different. One, 17b, involves a crime that is capable of two different categorizations, and the result when the category is changed before sentence is pronounced. The other, 1170.18, involves a procedure by which an imposed sentence is recalled (reversed or canceled) and the crime then resentenced as a misdemeanor.
The panel in C.H. proves even less capable. Proposition 47, enacted by the voters of California, became part of the California Constitution. The only method by which the mob of half-anonymous asses who huddle under the title of the California Legislature can change Proposition 47, is found in Section 15. Section 15 requires any amendment have 2/3 passage in both houses and only when the amendment is consistent with the goals of Proposition 47. After C.H. was denied his expungement, the aforementioned legislature amended PC 299 to exclude PC 1170.18 relief from the category of persons entitled to expungement.
This creates a legitimate legal issue of whether this amendment was constitutional. Did it amend Proposition 47? Did it pass by 2/3 of both houses? Is it consistent with Proposition 47?
Instead of actually addressing these weighty issues, the panel in C.H. holds that the legislatures' amendment serves as evidentiary support as to what the electorate meant when they passed Proposition 47. Think about the logic of this argument for a moment.
Hopefully the California Supreme Court will decide this issue. I can accept a decision either way, but only in an opinion that evinces a modicum of legitimate legal reasoning.
The First District affirms in both matters.
When I first began this blog, an experienced appellate attorney told me that California's Courts of Appeal resided within the slum of legal reasoning. If the sole evidence were these two opinions, I would be forced to agree.
The issue concerns the intersection of PC 1170.18 and PC 299. Both panels are eager to affirm the respective denials and both do so sloppily. It is difficult to pick a loser here.
In re C.B., the panel affirms the denial by analogy to PC 17b. Section 17b is a code section that deals with crimes that are chargeable, ,and punishable, as either felonies or misdemeanors at the respective discretions of the trial court and the State. In re C.H., the affirmance is based on the fact the legislature, after C.H.'s denial, amended PC 299 in a way which arguably violates Section 15 of Proposition 47, and hence the California Constitution. This issue is, to no one's surprise, ignored.
The central problem with both opinions is that they never quote the operative text of 1170.18. Section 1170.18 provides a vehicle for a felon to petition to have his sentence RECALLED and to be resentenced as a misdemeanant. "Recalled", per Blacks Law Dictionary, means to cancel or reverse. Both opinions never mention this operative word, "recalled", instead substituting their own word, "redesignated", a word that does not appear in 1170.18.
Once having executed this shameful substitution, the panel in C.B. can employ their 17b analogy without appearing ridiculous. It is freed from having to recognize that the relief available in the two different code sections is fundamentally different. One, 17b, involves a crime that is capable of two different categorizations, and the result when the category is changed before sentence is pronounced. The other, 1170.18, involves a procedure by which an imposed sentence is recalled (reversed or canceled) and the crime then resentenced as a misdemeanor.
The panel in C.H. proves even less capable. Proposition 47, enacted by the voters of California, became part of the California Constitution. The only method by which the mob of half-anonymous asses who huddle under the title of the California Legislature can change Proposition 47, is found in Section 15. Section 15 requires any amendment have 2/3 passage in both houses and only when the amendment is consistent with the goals of Proposition 47. After C.H. was denied his expungement, the aforementioned legislature amended PC 299 to exclude PC 1170.18 relief from the category of persons entitled to expungement.
This creates a legitimate legal issue of whether this amendment was constitutional. Did it amend Proposition 47? Did it pass by 2/3 of both houses? Is it consistent with Proposition 47?
Instead of actually addressing these weighty issues, the panel in C.H. holds that the legislatures' amendment serves as evidentiary support as to what the electorate meant when they passed Proposition 47. Think about the logic of this argument for a moment.
Hopefully the California Supreme Court will decide this issue. I can accept a decision either way, but only in an opinion that evinces a modicum of legitimate legal reasoning.
Monday, August 29, 2016
P v. Spiller (5th Dist.) In PC 1170.126, "Prior" Means Prior to the Conviction Which Is the Subject of The Relief Sought
In 1997, Mr. Spiller was convicted of five counts of robbery, PC 211, a strike offense.
In 1998, he was convicted of smuggling methamphetamine into prison, PC 4573, and conspiracy to commit same. As he had five prior strikes from the robberies, he was sentenced to 25-life under the old "at least two prior strikes plus any subsequent felony" law.
In 2001, while serving his 25-life for the smuggling conviction, he was convicted of, among other crimes, attempted murder, PC 664/187. For this he was sentenced to 45-life, to be served consecutive to the 25-life sentence. So if he lived until 2068, Spiller could make his pitch to the parole board.
Following the Three Strikes Reform Act of 2012, Spiller petitioned the trial court, under PC 1170.126, to reduce his 1998 smuggling sentence from 25-life to double the applicable determinate term. The trial court ruled Spiller was ineligible for the relief he sought because of his 2001 conviction for attempted murder. Spiller appealed.
The Fifth District reverses and remands.
The issue concerns section 1170.126, which states in pertinent part,
The key is the first line of the indented citation above. The statute refers to the offense for which relief is sought (here the 1998 smuggling) as the "current offense", indicating the proper temporal reference point. If the statute is going to consider the 1998 smuggling as the current offense, the term "prior offense" can only refer to convictions before the smuggling.
The State tries to goad the panel into abandoning its admirable judicial rigor in examining the intent expressed by the text, but fortunately the panel recognizes this for the casuistry it is and resists.
The result is fine. Spiller is not getting out (regardless of this petition, he is doing at least 51-life) and the statutory text has been respected by the appellate court.
In 1998, he was convicted of smuggling methamphetamine into prison, PC 4573, and conspiracy to commit same. As he had five prior strikes from the robberies, he was sentenced to 25-life under the old "at least two prior strikes plus any subsequent felony" law.
In 2001, while serving his 25-life for the smuggling conviction, he was convicted of, among other crimes, attempted murder, PC 664/187. For this he was sentenced to 45-life, to be served consecutive to the 25-life sentence. So if he lived until 2068, Spiller could make his pitch to the parole board.
Following the Three Strikes Reform Act of 2012, Spiller petitioned the trial court, under PC 1170.126, to reduce his 1998 smuggling sentence from 25-life to double the applicable determinate term. The trial court ruled Spiller was ineligible for the relief he sought because of his 2001 conviction for attempted murder. Spiller appealed.
The Fifth District reverses and remands.
The issue concerns section 1170.126, which states in pertinent part,
[A] petition for a recall of sentence … specify all of the currently charged felonies, which resulted in the sentence . . . and shall also specify all of the prior convictions . . .
An inmate is eligible for resentencing if:
(1) The inmate is serving an indeterminate term of life imprisonment . . . for a conviction of a felony or felonies that are not defined as serious and/or violent felonies.
(2) The inmate’s current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.
(3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.Eligibility is thus conditioned upon three things, the first two of which are not in dispute. Spiller's smuggling conviction was not a serious or violent felony and his smuggling offense did not appear in the code sections referred to in (2). It is the third condition that causes the trouble here. Spiller's 2001 attempted murder offense conviction does appear in 667(e)(2)(C). Therefore if that conviction is a "prior" he is ineligible for relief. But the question is "prior to what?". Prior to the offense for which relief is sought (the 1998 smuggling) or prior to now? If the former, Spiller is eligible. If the latter, he is not. It is a question of statutory interpretation.
The key is the first line of the indented citation above. The statute refers to the offense for which relief is sought (here the 1998 smuggling) as the "current offense", indicating the proper temporal reference point. If the statute is going to consider the 1998 smuggling as the current offense, the term "prior offense" can only refer to convictions before the smuggling.
The State tries to goad the panel into abandoning its admirable judicial rigor in examining the intent expressed by the text, but fortunately the panel recognizes this for the casuistry it is and resists.
The result is fine. Spiller is not getting out (regardless of this petition, he is doing at least 51-life) and the statutory text has been respected by the appellate court.
In Re H.W. (3rd Dist) Under PC 466, a "Burglary Tool" Need Not Have Any Relationship to a Burglary
Master H.W. walked into his local Sears with a pair of wire cutters, described as "pliers". He took a pair of jeans into a dressing room and used the pliers to remove the anti-theft tag on the jeans. After stashing the jeans in his backpack and leaving the store, he was caught by store detectives.
Based upon these facts, a juvenile judge found beyond a reasonable doubt that H.W. had committed the crime the possession of burglary tools, PC 466. H.W. appealed.
The Third District Affirms.
There is a tendency for appellate justices to put their ratiocinative vehicles on cruise control when deciding juvenile cases. This pedestrian effort is no exception.
Those who subscribe to the flawed rhetorical device of "legislating from the bench" (of which I am not a member) have a treasure trove of material here. Section 466 states, in pertinent part,
This substitution proves to be too clever by half. Every first year law student knows that the actus reus of burglary is the entry into the store or residence. H.W.'s burglary of Sears was complete when he walked inside with the intent to steal some jeans. The pliers played no role in the burglary. The intent of H.W. was not to use the pliers to commit a burglary (they were excrescent as to that crime), rather he intended to use to pliers to commit a theft after the burglary was complete. So, despite the panel's ham-handed attempt to shoe-horn the facts here into PC 466, it is not quite clever enough to do so convincingly.
As an aside, if H.W. did this today could he be convicted of PC 466, or would the "felonious" element be missing given the enactment of PC 459.5?
Based upon these facts, a juvenile judge found beyond a reasonable doubt that H.W. had committed the crime the possession of burglary tools, PC 466. H.W. appealed.
The Third District Affirms.
There is a tendency for appellate justices to put their ratiocinative vehicles on cruise control when deciding juvenile cases. This pedestrian effort is no exception.
Those who subscribe to the flawed rhetorical device of "legislating from the bench" (of which I am not a member) have a treasure trove of material here. Section 466 states, in pertinent part,
Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle as defined in the Vehicle Code, . . . . is guilty of a misdemeanor.Parsing out the text, we get this.
(1) possession by the defendant; (2) of tools within the purview of the statute; (3) with the intent to use the tools for the felonious purposes of breaking or entering.” (People v. Southard (2007) 152 Cal.App.4th 1079, 1084-1085)The opinion spends most of its time analyzing whether the item H.W. possessed satisfied element (2), concluding it does. This is a reasonable interpretation given the catch-all provision of "other instrument or tool". Where the panel spends little space is element (3), which is the real crux of this case. H.W. obviously did not have the intent to use the tool for the purpose of breaking into Sears or entering Sears. The panel tries to avoid this obvious weakness by, in an obvious judicial sleight of hand, replacing the statutory text of element (3) with the phrase, "with the intent to use the tools for a burglarious purpose".
This substitution proves to be too clever by half. Every first year law student knows that the actus reus of burglary is the entry into the store or residence. H.W.'s burglary of Sears was complete when he walked inside with the intent to steal some jeans. The pliers played no role in the burglary. The intent of H.W. was not to use the pliers to commit a burglary (they were excrescent as to that crime), rather he intended to use to pliers to commit a theft after the burglary was complete. So, despite the panel's ham-handed attempt to shoe-horn the facts here into PC 466, it is not quite clever enough to do so convincingly.
As an aside, if H.W. did this today could he be convicted of PC 466, or would the "felonious" element be missing given the enactment of PC 459.5?
Sunday, August 28, 2016
In Re Mancillas (6th Dist) Summary Revocation of Probation Does Not Toll the 60 Day Limit Of PC 1203.2a
July 2012, Mr. Mancillas was sentenced to three years in prison. Execution of the sentence was suspended and he was placed on probation for three years. Mancillas subsequently absconded from his probation officer and in January of 2013, his probation was summarily revoked and a bench warrant for his arrest issued.
While on the lam from his California case, Mancillas picked up a case in Nevada and on August 6, 2013, was sentenced to prison in Nevada. While in the Nevada prison, he asked the warden for the proper forms to notify the California court of his incarceration in Nevada and request disposition of his California case. The warden's staff provided the forms, attested to Mancillas' incarceration, and sent the forms to the California court which received them on December 23, 2013.
For reasons unstated, the California court took no action. Eventually in the summer of 2014, the California probation department asked the court to sentence Mancillas. August 26, 2014, the California court ordered the three year sentence be executed and ordered it to be served consecutive to the Nevada case. Mancillas petitioned for a writ of habeas corpus.
The Sixth District grants the petition and vacates the three year sentence.
The operative statute is PC 1203.2a, which states,
Whether due to the trial court's sloth, administrative error, or a legal misunderstandings, Mancillas will never have to serve this California sentence.
While on the lam from his California case, Mancillas picked up a case in Nevada and on August 6, 2013, was sentenced to prison in Nevada. While in the Nevada prison, he asked the warden for the proper forms to notify the California court of his incarceration in Nevada and request disposition of his California case. The warden's staff provided the forms, attested to Mancillas' incarceration, and sent the forms to the California court which received them on December 23, 2013.
For reasons unstated, the California court took no action. Eventually in the summer of 2014, the California probation department asked the court to sentence Mancillas. August 26, 2014, the California court ordered the three year sentence be executed and ordered it to be served consecutive to the Nevada case. Mancillas petitioned for a writ of habeas corpus.
The Sixth District grants the petition and vacates the three year sentence.
The operative statute is PC 1203.2a, which states,
If any defendant who has been released on probation is committed to a prison in . . . another state for another offense . . . the court shall issue its commitment if sentence has previously been imposed. . . . the court shall be deprived of jurisdiction over defendant if it does not issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 60 days after being notified of the confinement. . . .December 23, 2013 to August 26, 2014 is more than 60 days. While the State makes a series of other specious argument disposed of briefly by the panel, the real issue is the effect, if any, of the summary probation revocation in January 2014. The issue is two-fold. First was Mancillas still "released on probation" after his probation had been summarily revoked? The panel answers "yes", as Mancillas was still subject to the terms and conditions of his probation. The second prong is whether the summary revocation tolled the 60 day jurisdictional limit? The panel says "no". Summary revocation is a vehicle to preserve the ability of a court to adjudicate an alleged probation violation, while 1203.2a's purpose is to establish the jurisdictional window within which sentence may be executed in the absence of any violation. There is no reason to graft onto 1203.2a a tolling provision borne out of statute with a wholly different purpose.
Whether due to the trial court's sloth, administrative error, or a legal misunderstandings, Mancillas will never have to serve this California sentence.
P v. Hronchak (2nd Dist, Div.7) Custody Time for Parole Violations Under 1170.18 Are Not Subject to the 364 Day Maximum Sentence for Misdemeanors
September of 2014, Mr. Hronchak was sent to prison for 16 months for felony possession of a controlled substance, HS 11377(a). Soon after the electorate passed Proposition 47, Hronchak returned to court where his felony conviction was reduced to a misdemeanor and he was released with credits of 360 days. He was also placed on parole for one year as provided for in PC 1170.18.
A couple of months down the road, Hronchak violated his parole by absconding. The parole office wanted the judge to give Hronchak 135 days in jail for the violation. Hronchak argued he shouldn't be subject to any time in jail for his violation since he was on parole for a misdemeanor that carried a maximum sentence of 364 days.
The trial judge, Solomonesque IMEO, admitted that Hronchak's argument had some logical appeal, but the result would be to render Hronchak's parole meaningless as there could be no consequence for future violations. So the judge gave Hronchak 60 days and reinstated his parole. Hronchak appealed.
The Second District affirms.
The decision makes sense. And while the legal analysis supporting it is fine, the most compelling reason is that cited by the trial judge, to wit, that setting an outer limit for total custody time to 364 days would render the parole provision of section 1170.18 meaningless for Hronchak and most others similarly situated. I was surprised the panel did not analogize the misdemeanor parole at issue here to the traditional felony parole. There are reams of opinions authorizing additional custody time for parole violations despite the parolee having already served the maximum legal sentence. It would seem reasonable that the parole statutes are to be applied as written regardless of the underlying crime.
While I do not assert that the 1170.18 parole provision is ambiguous, I do wonder if those responsible for writing Proposition 47 actually meant "probation" instead of parole. Especially given the recent changes to the parole system in 2011.
A couple of months down the road, Hronchak violated his parole by absconding. The parole office wanted the judge to give Hronchak 135 days in jail for the violation. Hronchak argued he shouldn't be subject to any time in jail for his violation since he was on parole for a misdemeanor that carried a maximum sentence of 364 days.
The trial judge, Solomonesque IMEO, admitted that Hronchak's argument had some logical appeal, but the result would be to render Hronchak's parole meaningless as there could be no consequence for future violations. So the judge gave Hronchak 60 days and reinstated his parole. Hronchak appealed.
The Second District affirms.
The decision makes sense. And while the legal analysis supporting it is fine, the most compelling reason is that cited by the trial judge, to wit, that setting an outer limit for total custody time to 364 days would render the parole provision of section 1170.18 meaningless for Hronchak and most others similarly situated. I was surprised the panel did not analogize the misdemeanor parole at issue here to the traditional felony parole. There are reams of opinions authorizing additional custody time for parole violations despite the parolee having already served the maximum legal sentence. It would seem reasonable that the parole statutes are to be applied as written regardless of the underlying crime.
While I do not assert that the 1170.18 parole provision is ambiguous, I do wonder if those responsible for writing Proposition 47 actually meant "probation" instead of parole. Especially given the recent changes to the parole system in 2011.
Saturday, August 27, 2016
P v. Grimes (Cal. S.Ct.) Death Penalty Reversed For Erroneous Exclusion of Evidence
Mr. Grimes, along with Mssrs. Wilson and Morris, robbed a 98-year old lady and burgled her home. During these crimes, Morris killed the lady. Morris killed himself after one day in jail. Grimes proceeded to trial where he was convicted of first degree murder with the special circumstance of felony murder. The jury decided the State should kill Grimes.
Following a rehearing, the California Supreme Court affirms the conviction, but reverses the jury's decision to offer up Grimes in the antidiluvian ritual of human sacrifice.
The main issue is whether the trial court erred in excluding statements made by Morris to Wilson's girlfriend, Sheila. Morris told Sheila that he had actually killed the lady and that Grimes did not participate in the killing, rather Grimes had looked at Morris with a look of "what are you doing?". The trial court allowed the portion of Morris' statement where he admitted being the actual killer, but excluded the portions where he disclaimed Grimes' participation in the killing.
The schism between the majority and the dissenters begins with the proper standard of review. The dissenters want to limit the review to a deferential look at whether the trial court's decision was, facially, an abuse of discretion. The majority wants to first look at whether the trial court correctly interpreted the law and then proceed to the abuse of discretion analysis.
The law at issue is the hearsay exception in Evidence Code section 1203, which spares from exclusion otherwise inadmissible hearsay statements, specifically
The majority disagrees, taking a broader approach to the interpretation of 1203, a section that codifies a common law hearsay exception based upon the principle that reasonable people will not fabricate a statement that operates to their detriment, giving such a statements the gloss of reliability. So while Morris may not have technically increased his criminal liability by saying Grimes did not participate in the killing, a reasonable person would understand such a statement as being against his interest. Which makes sense. Such a statement takes away the ability to argue, in mitigation, that Morris was just following orders, had been forced by his fellow conspirators to commit the murder, or was somehow less culpable than the others.
Because the trial judge's narrow interpretation of section 1203 was incorrect, his eventual decision was an abuse of discretion, says the majority. And it prejudiced Grimes during the penalty phase, taking away evidentiary support for an argument that Grimes had no personal intent to hurt the lady, based upon his reaction when he saw Morris' murder the lady.
Thus, Grimes convictions remain, but he will now serve a sentence of life without parole.
As I read the majority and dissenting opinions, it became clear the current California Supreme Court has two tiers of justices. One tier tends towards an objective, thorough and academic analysis, as its members' backgrounds would suggest. The second tier is more reptilian in nature and evinces a thought process based in personal convenience, a trait often found in government lawyers who have found themselves elevated to their respective levels of incompetence.
Following a rehearing, the California Supreme Court affirms the conviction, but reverses the jury's decision to offer up Grimes in the antidiluvian ritual of human sacrifice.
The main issue is whether the trial court erred in excluding statements made by Morris to Wilson's girlfriend, Sheila. Morris told Sheila that he had actually killed the lady and that Grimes did not participate in the killing, rather Grimes had looked at Morris with a look of "what are you doing?". The trial court allowed the portion of Morris' statement where he admitted being the actual killer, but excluded the portions where he disclaimed Grimes' participation in the killing.
The schism between the majority and the dissenters begins with the proper standard of review. The dissenters want to limit the review to a deferential look at whether the trial court's decision was, facially, an abuse of discretion. The majority wants to first look at whether the trial court correctly interpreted the law and then proceed to the abuse of discretion analysis.
The law at issue is the hearsay exception in Evidence Code section 1203, which spares from exclusion otherwise inadmissible hearsay statements, specifically
a statement that when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.The trial court took a narrow approach to this language and reasoned that while Morris' statement that he killed the lady certainly subjected him to criminal liability, the qualification that he did so without Grimes' assistance did nothing to increase Morris' liability.
The majority disagrees, taking a broader approach to the interpretation of 1203, a section that codifies a common law hearsay exception based upon the principle that reasonable people will not fabricate a statement that operates to their detriment, giving such a statements the gloss of reliability. So while Morris may not have technically increased his criminal liability by saying Grimes did not participate in the killing, a reasonable person would understand such a statement as being against his interest. Which makes sense. Such a statement takes away the ability to argue, in mitigation, that Morris was just following orders, had been forced by his fellow conspirators to commit the murder, or was somehow less culpable than the others.
Because the trial judge's narrow interpretation of section 1203 was incorrect, his eventual decision was an abuse of discretion, says the majority. And it prejudiced Grimes during the penalty phase, taking away evidentiary support for an argument that Grimes had no personal intent to hurt the lady, based upon his reaction when he saw Morris' murder the lady.
Thus, Grimes convictions remain, but he will now serve a sentence of life without parole.
As I read the majority and dissenting opinions, it became clear the current California Supreme Court has two tiers of justices. One tier tends towards an objective, thorough and academic analysis, as its members' backgrounds would suggest. The second tier is more reptilian in nature and evinces a thought process based in personal convenience, a trait often found in government lawyers who have found themselves elevated to their respective levels of incompetence.
Friday, August 26, 2016
P v. Rodriguez (Cal. S. Ct.) "Available" Does Not Mean "Convenient" For Purposes of PC 1538.5(p)
The police searched Mr. Rodriguez's home and found evidence Rodriguez possessed child pornography. The police used this evidence to obtain a search warrant to seize Rodriguez's computer, which was later found to contain more child pornography. The State charged Rodriguez accordingly.
Rodriguez made a motion to suppress the evidence of child pornography on the basis it was seized in violation of the Fourth Amendment to the U.S. Constitution. Such motions are governed by Penal Code section 1538.5. Rodriguez chose to litigation the motion concurrent with the preliminary hearing. One Judge Northway, sitting as the magistrate, denied the motion to suppress and held Rodriguez to answer to the charges.
Rodriguez renewed his motion to suppress under section 1538.5(i). One Judge Chiarello heard the renewed motion and granted it, suppressing the evidence obtained during the first search as well as the evidence seized pursuant to the warrant. The State, now without any evidence to convict Rodriguez, dismissed the case.
However, the State quickly refiled the charges. Rodriguez, with equal alacrity, filed a motion to suppress the evidence. Additionally, Rodriguez demanded that Judge Chiarello be assigned to hear the motion. This because of section 1538.5(p) which state in pertinent part:
The matter was then assigned to one Judge Zecher, who heard, and denied the motion to suppress. Rodriguez, as before, filed a renewed motion to suppress under 1538.5(i). But the trial court (the judge's name is omitted) determined that 1538.5(i) was not the proper vehicle, so Rodriguez filed PC 995 motion to set aside the information. This 995 motion was assigned to one Judge Clark, who denied the motion, but invited Rodriguez to file a 1538.5(i) renewed motion. Rodriguez accepted the invitation and filed a 1538.5(i) renewed motion, which Judge Clark denied.
Ultimately, Rodriguez opted for a bench trial which was assigned to . . . wait for it . . . Judge Chiarello. Rodriguez was found guilty and placed on probation. He appealed and the Court of Appeal affirmed, finding section 1538.5(p) conferred "wholly discretionary authority" upon P.J. Nadler to find Judge Chiarello was unavailable by reason of his being in Palo Alto on the day scheduled for Rodriguez's suppression motion.
The California Supreme Court granted review and reverses, finding P.J. Nadler abused his discretion.
In an unnecessarily long (common for tyro justices), but not bad, opinion, Justice Cuellar finds that "available" is not coterminous with "convenient". Rather, to achieve the legislative purpose of avoiding "judge-shopping", reasonable steps must be taken in good faith to ensure the previous judge hears the relitigated motion. Here, P.J. Nadler didn't even try to contact Judge Chiarello to see when he may be available to come to San Jose to hear the motion (or if the parties were willing to drive to Palo Alto). While wisely leaving the field open, the court does state that death, retirement, and mental incapacity, would certainly justify a finding of unavailability.
So the California Supreme Court remands the case to the Court of Appeal and directs it to instruct the trial court to determine whether Judge Chiarello is available to hear Rodriguez's renewed motion.
And in a poetic twist, I read in the national news that Judge Chiarello has now swapped assignments with the (unfairly) beleaguered Judge Aaron Persky and will now be permanently sitting in Palo Alto.
Rodriguez made a motion to suppress the evidence of child pornography on the basis it was seized in violation of the Fourth Amendment to the U.S. Constitution. Such motions are governed by Penal Code section 1538.5. Rodriguez chose to litigation the motion concurrent with the preliminary hearing. One Judge Northway, sitting as the magistrate, denied the motion to suppress and held Rodriguez to answer to the charges.
Rodriguez renewed his motion to suppress under section 1538.5(i). One Judge Chiarello heard the renewed motion and granted it, suppressing the evidence obtained during the first search as well as the evidence seized pursuant to the warrant. The State, now without any evidence to convict Rodriguez, dismissed the case.
However, the State quickly refiled the charges. Rodriguez, with equal alacrity, filed a motion to suppress the evidence. Additionally, Rodriguez demanded that Judge Chiarello be assigned to hear the motion. This because of section 1538.5(p) which state in pertinent part:
Relitigation of the motion shall be heard by the same judge who granted the motion at the first hearing if the judge is available.The presiding judge, Judge Nadler, found that because Judge Chiarello was going to be at the Palo Alto courthouse on the day set for the hearing (which was at the San Jose courthouse), he was unavailable and therefore Rodriguez had no right to have Judge Chiarello hear the matter.
The matter was then assigned to one Judge Zecher, who heard, and denied the motion to suppress. Rodriguez, as before, filed a renewed motion to suppress under 1538.5(i). But the trial court (the judge's name is omitted) determined that 1538.5(i) was not the proper vehicle, so Rodriguez filed PC 995 motion to set aside the information. This 995 motion was assigned to one Judge Clark, who denied the motion, but invited Rodriguez to file a 1538.5(i) renewed motion. Rodriguez accepted the invitation and filed a 1538.5(i) renewed motion, which Judge Clark denied.
Ultimately, Rodriguez opted for a bench trial which was assigned to . . . wait for it . . . Judge Chiarello. Rodriguez was found guilty and placed on probation. He appealed and the Court of Appeal affirmed, finding section 1538.5(p) conferred "wholly discretionary authority" upon P.J. Nadler to find Judge Chiarello was unavailable by reason of his being in Palo Alto on the day scheduled for Rodriguez's suppression motion.
The California Supreme Court granted review and reverses, finding P.J. Nadler abused his discretion.
In an unnecessarily long (common for tyro justices), but not bad, opinion, Justice Cuellar finds that "available" is not coterminous with "convenient". Rather, to achieve the legislative purpose of avoiding "judge-shopping", reasonable steps must be taken in good faith to ensure the previous judge hears the relitigated motion. Here, P.J. Nadler didn't even try to contact Judge Chiarello to see when he may be available to come to San Jose to hear the motion (or if the parties were willing to drive to Palo Alto). While wisely leaving the field open, the court does state that death, retirement, and mental incapacity, would certainly justify a finding of unavailability.
So the California Supreme Court remands the case to the Court of Appeal and directs it to instruct the trial court to determine whether Judge Chiarello is available to hear Rodriguez's renewed motion.
And in a poetic twist, I read in the national news that Judge Chiarello has now swapped assignments with the (unfairly) beleaguered Judge Aaron Persky and will now be permanently sitting in Palo Alto.
P v. Wagner (4th Dist, Div.1) An Order Revoking Parole Is a "Judgment" Eligible For PC 1473.6 Relief
Back in 2006, Mr. Wagner was convicted of, among other crimes, impersonating a policeman. He served his time and was released on parole in 2011.
In 2014, the State alleged Wagner had violated his parole by driving around in a black Ford Crown Victoria that looked like a police cruiser, after being told by his parole agent to stop driving that car.
At a hearing on the allegations, the parole officer testified that prior to May 13, 2014, Wagner had been seen driving the black Crown Vic. Due to Wagner's previous conviction for impersonating a policeman, the parole officer testified that during a May 13, 2014, meeting with Wagner, he told Wagner to stop driving the Crown Vic. May 28, 2014, Wagner was again seen driving the Crown Vic. Wagner and his girlfriend, who also was present at the May 13, 2014, meeting, both testified that the parole officer said nothing about the Crown Vic during the meeting. The trial judge (no surprise) believed the parole officer, revoked Wagner's parole, and sent him to jail for 120 days.
Wagner did his 120 days. After he was released, Wagner obtained the text of emails sent to and by the parole officer. In one of the emails sent from the parole officer to a policeman, the parole officer wrote that he "did not plan to speak to Wagner about the Crown Vic on May 13, 2014".
Wagner then filed a motion to vacate the judgment pursuant to Penal Code section 1473.6. The trial court denied the motion without reaching the merits on the basis that an order revoking parole was not a "judgment" within the meaning of 1473.6. Wagner appealed.
The opinion contains an nice primer on section 1473.6, a statute of which I was previously unaware. It resulted from the Rampart scandal which uncovered a long period of extensive corruption within the Los Angeles police department. While those innocents sitting in jail because of the evidence-planting and perjury uncovered could avail themselves of the vehicle of habeas corpus, the poor saps who had already served time for convictions based upon police lies and misdeeds were stuck. There was no procedural vehicle for them to vacate their convictions and get back their good names, regardless of the strength of the evidence that their convictions were solely the result of police perjury or other criminal behavior. So the legislature crafted section 1473.6, which gives those who have already done their time a vehicle to move to vacate a judgment if they can show the judgment was the result of State misconduct.
The question here is whether an order to revoke a person's parole is a "judgment" under 1473.6. First the panel looks to the California Codes. Code of Civil Procedure section 577 defines judgment as a "final determination of the rights of the parties in an action or proceeding". Second the panel examines how parole revocations are treated in the appellate realm. Finally it examines the impact of parole revocations upon the parolee. All of these factors favor a finding that parole revocations are "judgments" under 1473.6.
The case is remanded for Wagner to have his day in court where the parole officer will, no doubt, have some explaining to do.
Thursday, August 25, 2016
P v. Garner (2nd Dist, Div.4) Entering a Grocery Store Intending to Pass a Forged Check is Shoplifting.
Ms. Garner walked into a grocery store and tried to pay for merchandise with a forged 100 dollar traveler's check. For this she was convicted of felony second degree burglary and felony forgery.
Subsequently, November 4, 2014, the California voters passed Proposition 47. Garner then petitioned the trial court to reduce her convictions to misdemeanors pursuant to PC 1170.18. The trial court denied her petition as to the burglary conviction on the basis that Garner had entered the grocery with an intent to commit theft by false pretenses, not larceny. Because Garner had not the intent to commit larceny, her burglary would not constitute the misdemeanor crime of shoplifting if committed today, said the trial court. Garner appealed.
The Second District reverses.
This issue, whether "larceny" as used in the shoplifting statute, includes theft by false pretenses is pending before the California Supreme Court (P v. Gonzalez). I will wager a bottle of Johnny Walker black that the California Supreme Court will answer "yes".
Some insecure judges, misinterpreting the electorate's decision to ameliorate the punishments for certain offenses as a slight to their fitness, have engaged in all sorts of excerebrose reasoning to narrow the reach of the Proposition 47. I previously discussed the folly of the Gonzalez opinion here. The issue is not even really close. Penal Code section 490a is quite clear on the matter; "larceny" is to be read as "theft" and "theft" includes theft by false pretenses.
When Garner went into the grocery, she intended to commit larceny. This because larceny is defined as "theft" in 490a and Garner intended to commit theft. That the method of theft was false pretenses is of no import. Because she intended to commit larceny (under 950 dollars) when she went inside the grocery, her crime would necessarily be shoplifting if committed today.
Subsequently, November 4, 2014, the California voters passed Proposition 47. Garner then petitioned the trial court to reduce her convictions to misdemeanors pursuant to PC 1170.18. The trial court denied her petition as to the burglary conviction on the basis that Garner had entered the grocery with an intent to commit theft by false pretenses, not larceny. Because Garner had not the intent to commit larceny, her burglary would not constitute the misdemeanor crime of shoplifting if committed today, said the trial court. Garner appealed.
The Second District reverses.
This issue, whether "larceny" as used in the shoplifting statute, includes theft by false pretenses is pending before the California Supreme Court (P v. Gonzalez). I will wager a bottle of Johnny Walker black that the California Supreme Court will answer "yes".
Some insecure judges, misinterpreting the electorate's decision to ameliorate the punishments for certain offenses as a slight to their fitness, have engaged in all sorts of excerebrose reasoning to narrow the reach of the Proposition 47. I previously discussed the folly of the Gonzalez opinion here. The issue is not even really close. Penal Code section 490a is quite clear on the matter; "larceny" is to be read as "theft" and "theft" includes theft by false pretenses.
When Garner went into the grocery, she intended to commit larceny. This because larceny is defined as "theft" in 490a and Garner intended to commit theft. That the method of theft was false pretenses is of no import. Because she intended to commit larceny (under 950 dollars) when she went inside the grocery, her crime would necessarily be shoplifting if committed today.
P v. Newman (2nd Dist, Div.2) Ineligibility for PC 1170.126 Relief on Conduct Grounds May Be Determined by a Trial Court Using the Preponderance Standard
Back in 2000, Mr. Newman phoned his local Pizza Hut to order a pie. The order taker placed him on hold and Newman became pissed. Five minutes after eventually placing his order, Newman went to the Pizza Hut and created a scene, cussing at the staff. The staff offered Newman a couple of free pies if he would just settle down. Newman declined this generous offer and instead punched a delivery man, breaking the poor guy's jaw. Not satisfied, Newman then choked the delivery man and took 50 bucks from him. For his actions, Newman was charged with assault by means likely to cause great bodily injury (then PC 245(a)(1)) with an enhancement for causing great bodily injury, and second degree robbery (PC 211).
The case proceeded to trial and a jury found Newman guilty of the 245(a)(1). It found Newman not guilty of the robbery and found not true the enhancement for great bodily injury. Since Newman had five prior strike convictions, he was eventually sentenced to 25-life under the then-in-effect "2 strikes and any subsequent felony" law.
Following the change in the law from "2 strikes and any subsequent felony" to "2 strikes and any subsequent strike or disqualifying felony", Newman petitioned for relief under PC 1170.126. The trial court found Newman ineligible for relief because it determined from the trial transcript that Newman "intended to cause great bodily injury to another person" during the commission of the 245(a)(1). Newman appealed.
The Second District affirms.
Two issues are presented. The first is whether the trial court can make factual findings of ineligibility from the record of conviction. The second is, if it can, what is the applicable standard of proof.
The first issue arises due to the rules of eligibility. Section 1170.126 conditions eligibility for resentencing upon the petitioner's relevant conviction not falling within a list of convictions from cited code sections. Most of these convictions of ineligibility are convictions for violating specific sections of the penal code. Newman's PC 245(a)(1) is not one of the listed sections, so he is fine so far. However, the list of ineligible convictions also includes convictions for any felony during which the petitioner "used a firearm, was armed with a firearm or dangerous weapon, or intended to cause great bodily injury [GBI] to another person." I refer to this section as the "conduct grounds" of ineligibility because it is the conduct that renders the petitioner ineligible, not the statute of conviction. You could be convicted of a rather innocuous felony (stealing 250 dollars worth of avocados), but if during the theft you were armed with a pair of nunchuks, you'd be ineligible.
Newman used no weapons, so the only thing that can disqualify him is if he "intended to cause GBI". Newman argues that unless the jury made such a finding, as a necessary element of a crime or enhancement, the court must conclude Newman had no such intent. The State disagrees and responds that because the jury had no reason to make any finding as to whether Newman had such an intent (it was not an element of any of the charged crimes or the enhancement) the trial court may now make the finding after looking at the trial transcript.
The panel agrees with the State, finding that Newman's interpretation would render the relevant portion of 1170.126 meaningless (It actually overstates its case by claiming it would render all of Proposition 36 meaningless-it wouldn't). So the next issue is what standard of proof is applicable. There is a split of opinion on this issue as one appellate court has found "beyond a reasonable doubt" is the proper standard (P v. Arevalo), while other courts have held "by the preponderance of evidence" to be applicable.
The panel here holds that the preponderance standard is the one to use. And applying the preponderance standard to the trial transcript, it affirms the trial court's finding of ineligibility finding because the transcript supports the fact Newman punched the Pizza Hut driver with an intent to inflict great bodily injury.
It was probably, in retrospect, a tactical mistake not to have accepted the offer to just calm down and receive two free pies.
The case proceeded to trial and a jury found Newman guilty of the 245(a)(1). It found Newman not guilty of the robbery and found not true the enhancement for great bodily injury. Since Newman had five prior strike convictions, he was eventually sentenced to 25-life under the then-in-effect "2 strikes and any subsequent felony" law.
Following the change in the law from "2 strikes and any subsequent felony" to "2 strikes and any subsequent strike or disqualifying felony", Newman petitioned for relief under PC 1170.126. The trial court found Newman ineligible for relief because it determined from the trial transcript that Newman "intended to cause great bodily injury to another person" during the commission of the 245(a)(1). Newman appealed.
The Second District affirms.
Two issues are presented. The first is whether the trial court can make factual findings of ineligibility from the record of conviction. The second is, if it can, what is the applicable standard of proof.
The first issue arises due to the rules of eligibility. Section 1170.126 conditions eligibility for resentencing upon the petitioner's relevant conviction not falling within a list of convictions from cited code sections. Most of these convictions of ineligibility are convictions for violating specific sections of the penal code. Newman's PC 245(a)(1) is not one of the listed sections, so he is fine so far. However, the list of ineligible convictions also includes convictions for any felony during which the petitioner "used a firearm, was armed with a firearm or dangerous weapon, or intended to cause great bodily injury [GBI] to another person." I refer to this section as the "conduct grounds" of ineligibility because it is the conduct that renders the petitioner ineligible, not the statute of conviction. You could be convicted of a rather innocuous felony (stealing 250 dollars worth of avocados), but if during the theft you were armed with a pair of nunchuks, you'd be ineligible.
Newman used no weapons, so the only thing that can disqualify him is if he "intended to cause GBI". Newman argues that unless the jury made such a finding, as a necessary element of a crime or enhancement, the court must conclude Newman had no such intent. The State disagrees and responds that because the jury had no reason to make any finding as to whether Newman had such an intent (it was not an element of any of the charged crimes or the enhancement) the trial court may now make the finding after looking at the trial transcript.
The panel agrees with the State, finding that Newman's interpretation would render the relevant portion of 1170.126 meaningless (It actually overstates its case by claiming it would render all of Proposition 36 meaningless-it wouldn't). So the next issue is what standard of proof is applicable. There is a split of opinion on this issue as one appellate court has found "beyond a reasonable doubt" is the proper standard (P v. Arevalo), while other courts have held "by the preponderance of evidence" to be applicable.
The panel here holds that the preponderance standard is the one to use. And applying the preponderance standard to the trial transcript, it affirms the trial court's finding of ineligibility finding because the transcript supports the fact Newman punched the Pizza Hut driver with an intent to inflict great bodily injury.
It was probably, in retrospect, a tactical mistake not to have accepted the offer to just calm down and receive two free pies.
Friday, August 19, 2016
P v. Vidana (Cal SC) Embezzlement and Larceny are the Same Offense For Which Multiple Convictions are Prohibited
Ms. Vidana had a job which entailed collecting payments from her employer's customers and turning the money over to her supervisor. Over a period of two years, Vidana collected over 58K from customers and, instead of turning it over to her supervisor, kept it.
For this, a jury convicted Vidana of two crimes, grand theft by larceny and grand theft by embezzlement. Vidana appealed, asserting the two crimes of which she was convicted were the same crime, and therefore PC 954 prohibited her being convicted of multiple crimes. An appeals panel agreed and reversed one of the convictions. The State then successfully petitioned the California Supreme Court to review the appellate court's decision.
The California Supreme Court affirms.
The issue is two-fold. First, are the larceny and embezzlement here the "same offense" as that term is used in PC 954? Second, if they are the "same offense" does PC 954 allow multiple convictions? The Court answers these questions, "yes" and "no", respectively.
The Court begins by providing the necessary historical context. In the old days, the common law recognized different forms of theft as separate crimes, distinguished by esoteric differences that are still used today in the torture of first year law students. Larceny by trespass, embezzlement, theft by false pretenses, and larceny by trick, were different offenses comprised of different sets of elements.
Not only were the abstract distinctions between these crimes often difficult to understand, such difficulties were compounded by a restriction that the State was limited to charging one offense per commission. This meant the accused, if charged with larceny-by-trick, could escape conviction for her misdeeds by successfully arguing she actually committed the crime of theft by false pretenses (or larceny by trespass or embezzlement).
To remedy this, in 1905, the California legislature enacted language in PC 954 which lifted the limitation that the State could charge only one offense per commission and allowed the State to charge: [1] "different offenses connected together in their commission"; [2] "different statements of the same offense"; and, [3] "different offenses of the same class". Section 954 also expressly allowed a defendant to be convicted of "any number of the offenses charges".
Subsequent to this change in the rules for pleadings, the California legislature compressed the definitions of larceny by trespass, embezzlement, and false pretenses, into the definition of "theft", PC 484. A look at the legislative history behind PC 484, leaves little doubt the legislature meant to combine then into a single offense.
For Vidana, the decision means she will now only have one felony conviction.
For the rest of us, this gives us some insight into how the California Supreme Court may decide P v. Gonzalez, the Proposition 47 case involving the issue of whether the intent to commit theft by false pretenses satisfies the shoplifting statute's (PC 459.5) element of an intent to commit larceny.
For this, a jury convicted Vidana of two crimes, grand theft by larceny and grand theft by embezzlement. Vidana appealed, asserting the two crimes of which she was convicted were the same crime, and therefore PC 954 prohibited her being convicted of multiple crimes. An appeals panel agreed and reversed one of the convictions. The State then successfully petitioned the California Supreme Court to review the appellate court's decision.
The California Supreme Court affirms.
The issue is two-fold. First, are the larceny and embezzlement here the "same offense" as that term is used in PC 954? Second, if they are the "same offense" does PC 954 allow multiple convictions? The Court answers these questions, "yes" and "no", respectively.
The Court begins by providing the necessary historical context. In the old days, the common law recognized different forms of theft as separate crimes, distinguished by esoteric differences that are still used today in the torture of first year law students. Larceny by trespass, embezzlement, theft by false pretenses, and larceny by trick, were different offenses comprised of different sets of elements.
Not only were the abstract distinctions between these crimes often difficult to understand, such difficulties were compounded by a restriction that the State was limited to charging one offense per commission. This meant the accused, if charged with larceny-by-trick, could escape conviction for her misdeeds by successfully arguing she actually committed the crime of theft by false pretenses (or larceny by trespass or embezzlement).
To remedy this, in 1905, the California legislature enacted language in PC 954 which lifted the limitation that the State could charge only one offense per commission and allowed the State to charge: [1] "different offenses connected together in their commission"; [2] "different statements of the same offense"; and, [3] "different offenses of the same class". Section 954 also expressly allowed a defendant to be convicted of "any number of the offenses charges".
Subsequent to this change in the rules for pleadings, the California legislature compressed the definitions of larceny by trespass, embezzlement, and false pretenses, into the definition of "theft", PC 484. A look at the legislative history behind PC 484, leaves little doubt the legislature meant to combine then into a single offense.
[T]he amendment ―consolidates the present crimes known as larceny, embezzlement and obtaining property under false pretenses, into one crime, designated as theft. The basis of all of these crimes as at present known is the unlawful taking or converting to one‘s own use of the property of another. The crimes are so similar that as the law now stands it is difficult, frequently practically impossible, to tell which crime has been committed in a particular transaction. By combining them all as the crime of theft, this difficulty will be obviated.Thus Vidana's larceny and embezzlement counts were, in PC 954 parlance, "different statements of the same offense". But this doesn't necessarily answer the question of whether multiple convictions are allowed. Answering this question requires construing the phrase in 954 which allows convictions for "any number of the offenses charged". The text practically answers itself. The number of convictions allowed is limited by the number of different offenses charged. If the number of offenses charged is one, the allowable number of convictions is one.
For Vidana, the decision means she will now only have one felony conviction.
For the rest of us, this gives us some insight into how the California Supreme Court may decide P v. Gonzalez, the Proposition 47 case involving the issue of whether the intent to commit theft by false pretenses satisfies the shoplifting statute's (PC 459.5) element of an intent to commit larceny.
Tuesday, August 16, 2016
P v. Raygoza (2nd Dist., Div.4) Defendant on Electronic Home Confinement as a Condition of Bail Entitled to Custody Credits
Mr. Raygoza was in jail pending trial. His bail was 455K. A bail bondsman told Raygoza that based upon his financials, the largest bond for which he qualified was 350K. At a bail hearing, the trial court told Raygoza that it would reduce Raygoza's bail to 350K if Raygoza agreed to participate in the probation department's "home confinement" program. Raygoza agreed.
He signed a contract with the county whereby he agreed to wear an electronic anklet, stay inside his house except for work and court, not have any booze or weapons in the house, waive his right against unreasonable searches and seizures, and acknowledged that violating the terms could expose him to an additional charge of escape pursuant to PC 4532. Raygoza donned the anklet and obeyed the rules.
Eventually Raygoza took a plea deal. At his sentencing, he argued that he should get presentence custody credits for all the days he served on home confinement under PC 2900.5. The trial court disagreed and ruled accordingly. Raygoza appealed.
The Second District reverses.
Section 2900.5 states that defendants shall receive presentence credits for "days served in home detention pursuant to 1203.016 or 1203.18". Section 1203.018 confers to California counties the authority to create a home detention program "in lieu of bail". It is undisputed that the program under which Raygoza was confined within his home was established under the authority of 1203.018 and that the conditions of confinement met the statutory requirements. The State argues that because Raygoza's home detention was a "bail condition" it was not "in lieu of bail". "Nonsense" says the panel. Raygoza's home detention was in lieu of the 105K bail (in excess of 350K) that he was unable to post.
The panel expands on this truism, pointing out that prior cases focused on the custodial "nature" of the confinement rather than the procedure by which the defendant finds himself confined. Here, the fact that the trial court judge ordered Raygoza's home confinement rather than the probation department's custodial officer is of no import.
Such blind pursuit of schadenfreude by government workers in her charge makes me fear the (seemingly) inevitable Senatorial anointment of Kamala Harris. The unabashed enjoyment of mastery over others is not an attractive trait in my eyes.
He signed a contract with the county whereby he agreed to wear an electronic anklet, stay inside his house except for work and court, not have any booze or weapons in the house, waive his right against unreasonable searches and seizures, and acknowledged that violating the terms could expose him to an additional charge of escape pursuant to PC 4532. Raygoza donned the anklet and obeyed the rules.
Eventually Raygoza took a plea deal. At his sentencing, he argued that he should get presentence custody credits for all the days he served on home confinement under PC 2900.5. The trial court disagreed and ruled accordingly. Raygoza appealed.
The Second District reverses.
Section 2900.5 states that defendants shall receive presentence credits for "days served in home detention pursuant to 1203.016 or 1203.18". Section 1203.018 confers to California counties the authority to create a home detention program "in lieu of bail". It is undisputed that the program under which Raygoza was confined within his home was established under the authority of 1203.018 and that the conditions of confinement met the statutory requirements. The State argues that because Raygoza's home detention was a "bail condition" it was not "in lieu of bail". "Nonsense" says the panel. Raygoza's home detention was in lieu of the 105K bail (in excess of 350K) that he was unable to post.
The panel expands on this truism, pointing out that prior cases focused on the custodial "nature" of the confinement rather than the procedure by which the defendant finds himself confined. Here, the fact that the trial court judge ordered Raygoza's home confinement rather than the probation department's custodial officer is of no import.
Such blind pursuit of schadenfreude by government workers in her charge makes me fear the (seemingly) inevitable Senatorial anointment of Kamala Harris. The unabashed enjoyment of mastery over others is not an attractive trait in my eyes.
P v. Abarca & P v. Hudson (4th Dist., Div 2 & 1): More PC 1170.18 Analysis From the Fourth District
As we approach the November 2016 election with its own host of voter initiatives, California's appellate courts continue to disagree as to the fruits of the November 2014 election, to wit, Proposition 47.
Proposition 47 was passed on November 4, 2014, and went into effect the next day. California trial courts were, understandably, unprepared for the deluge of petitions that followed. Admirably, many trial courts created mandatory forms for PC 1170.18 petitioners. Unfortunately, some subsequent appellate opinions held that the information required to complete these mandatory forms was insufficient to establish eligibility for relief under PC 1170.18. Some trial courts ruled on these petitions without a hearing, some held hearings. Some of the courts that held hearings admitted only evidence that complied with the evidence code, other courts admitted evidence clearly inadmissible under the evidence code.
It would be nice to say that California's appellate courts quickly addressed these procedural issues and provided much needed guidance to the trial courts. But I cannot (here) tell a lie.
Take the first case. Prior to November 5, 2014, Mr. Abarca walked into a bank and tried to cash a check he had forged in the amount of 300 dollars. He pleaded guilty to felony commercial burglary and received a five year sentence. In December 2014, Arbarca petitioned under PC 1170.18 to have his felony burglary conviction reduced to a misdemeanor because his conviction for commercial burglary would have necessarily have been a misdemeanor shoplift, per PC 459.5, had it occurred after November 4, 2014. He used a form created by the trial court which he signed under penalty of perjury. In response, the State opposed the petition on the ground that a bank was not a "commercial establishment". The trial court examined the arrest warrant in its file and granted the petition. It then graciously have both sides 10 days to file additional arguments they wished to preserve for appeal. The State did not file anything prior to its appeal.
The panel rejects the argument that a bank is not a commercial establishment, a term it holds encompasses businesses that sell goods and (financial) services. The State then tries to argue that Abarca's petition was deficient in that it did not constitute a facial showing of eligibility for PC 1170.18 relief. The panel rejects this on the basis that the State did not make this argument in the trial court. Recall the only argument advanced by the State was that a bank was not a "commercial establishment.
Constrast this with Mr. Hudson's case. Hudson walked into a bank and, posing as someone else, tried to cash a forged check. For this he pleaded guilty to felony commercial burglary and was sentenced to five years. Following the passage of Proposition 47, Hudson petitioned the trial court under PC 1170.18 to reduce his commercial burglary conviction to a misdemeanor, alleging the crime would have been one of misdemeanor shoplifting after the passage of Proposition 47. After consulting a post-plea probation report, the trial court denied the petition for two reasons. First, according to the trial court, a bank is not a "commercial establishment", and second, Hudson intended to steal more than 950 dollars when he walked into the bank. Hudson appealed.
This panel holds that a bank is a "commercial establishment" and thus does not affirm on this ground. It affirms on the basis that Hudson did not carry his burden to show the the bank was open when he tried to cash the forged check and that he failed to show the amount of the check was under 950 dollars. Apparently the record was silent on these issues and since Hudson had the burden, such silence means Hudson loses.
Neither opinion is demonstrably inconsistent with the text of Proposition 47. A reader does wonder why the panels feel these opinions should be published. Does either opinion really provide any succor to a trial court looking for procedural guidance in handling PC 1170.18 petitions? Does it clarify the proof required in the pleading stage? For instance, does a signature under penalty of perjury reciting the elements of shoplifting pass muster? Do the rules of evidence apply at a hearing on the petition? If not, is there any limitation on what evidence may be received? For answers to these questions we must wait.
Monday, August 15, 2016
P v. Stylz (2nd Dist., Div.4) Storage Rental Business is a "Commercial Establishment" Under PC 459.5; A Renter's Locked Unit Therein Is Not
In 2013, one Mr. Foley rented a storage unit from a business that let storage units. He filled it with what he estimated to be over four grand worth of his property and placed a lock on it. While the business was open, Mr. Stylz entered the grounds, broke into Mr. Foley's locked unit and cleaned it out. For this, Stylz was convicted of PC 459, felony second-degree burglary.
Comes 2015 and Stylz petitions the trial court to reduce his felony burglary conviction to a misdemeanor pursuant to PC 1170.18, a statutory offspring of the November 4, 2014, passage of Proposition 47. Stylz alleges his burglary, if committed today, would necessarily constitute the misdemeanor crime of shoplifting, defined in PC 459.5.
The issue is whether, for purposes of the burglary statute, Mr. Foley's unit is distinct from the storage rental business within which it is located. The rental business is certainly a commercial establishment, as it exists to provide storage space to members of the public in exchange for money. But is Mr. Foley's unit a commercial establishment by reason if it being located within one? Mr. Foley engaged in no commerce from within his unit and the unit was not "open" (it was locked). The issue is not so much one of outcome, but how to get there.
The panel utilizes the California Supreme Court's recent decision in P v. Garcia, a case involving whether entry into a business' bathroom for felonious purposes constituted an additional burglary from the initial entrance into the business. The holding was that entry into an interior room or structure can constitute an additional burglary if there is an objectively reasonable expectation of protection from intrusion relative to the larger structure. Via analogy, not identity, with Garcia, the panel finds that Mr. Foley's unit, despite being within a commercial establishment, is a legally distinct structure (or room) for purposes of the burglary statute. As the unit was not commercial, nor open, it does not fall under PC 459.5. Thus, breaking into the unit to steal its contents is not shoplifting.
One can imagine many areas inside retail establishments from which a theft would implicate the holding, such as employee lockers, employee break rooms, managers' offices, and stocks rooms, to name a few.
Comes 2015 and Stylz petitions the trial court to reduce his felony burglary conviction to a misdemeanor pursuant to PC 1170.18, a statutory offspring of the November 4, 2014, passage of Proposition 47. Stylz alleges his burglary, if committed today, would necessarily constitute the misdemeanor crime of shoplifting, defined in PC 459.5.
Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).Stylz claimed the storage rental business was open during his crime, that the business is a commercial establishment, and that contrary to Mr. Foley's four grand valuation, the property Stylz stole was worth less than 950 dollars. The trial court denied the petition because it found the storage rental business was not "open for the sale of items". Stylz appealed and now the Second District affirms, albeit on firmer ground than that used as a foundation by the trial court.
The issue is whether, for purposes of the burglary statute, Mr. Foley's unit is distinct from the storage rental business within which it is located. The rental business is certainly a commercial establishment, as it exists to provide storage space to members of the public in exchange for money. But is Mr. Foley's unit a commercial establishment by reason if it being located within one? Mr. Foley engaged in no commerce from within his unit and the unit was not "open" (it was locked). The issue is not so much one of outcome, but how to get there.
The panel utilizes the California Supreme Court's recent decision in P v. Garcia, a case involving whether entry into a business' bathroom for felonious purposes constituted an additional burglary from the initial entrance into the business. The holding was that entry into an interior room or structure can constitute an additional burglary if there is an objectively reasonable expectation of protection from intrusion relative to the larger structure. Via analogy, not identity, with Garcia, the panel finds that Mr. Foley's unit, despite being within a commercial establishment, is a legally distinct structure (or room) for purposes of the burglary statute. As the unit was not commercial, nor open, it does not fall under PC 459.5. Thus, breaking into the unit to steal its contents is not shoplifting.
One can imagine many areas inside retail establishments from which a theft would implicate the holding, such as employee lockers, employee break rooms, managers' offices, and stocks rooms, to name a few.
Friday, August 5, 2016
P v. Dunn (2nd Dist., Div.6) Sex Offender Registration for Juvenile Matter Disqualifies Defendant From PC 1170.18 Relief On PC 666 Conviction.
In 1990, when (then) Master Dunn was 14, a juvenile judge found true allegations that Dunn came within the jurisdiction of the juvenile court due to his commission of forcible rapes. Dunn was sent to the California Youth Authority (later renamed the Department of Juvenile Justice, and even later renamed the Department of Juvenile Facilities) and upon release was required to register as a sex offender.
In 2012, Dunn is convicted of felony petty-theft-with-a-prior, under former PC 666(b). Following the November 4, 2014, passage of Proposition 47, Dunn returned to court in 2015 and petitioned the court to reduce his felony petty-with-a-prior to a misdemeanor pursuant to PC 1170.18. The trial court denies Dunn's petition and he appealed.
Here the Second District affirms the denial.
The issue is one of statutory construction. Section 1170.18 gives the court jurisdiction to reduce a pre-Proposition 47 felony conviction to a misdemeanor if [1] the felony is one that would have necessarily been a misdemeanor if committed after November 4, 2015, and [2] the petitioner does not have a prior conviction for a "super-strike", a list of offenses including murder and rape.
Dunn's problem is not category [2]. As he was only 14 at the time of his juvenile adjudication for rape, it is not a "conviction" for purposes here. The problem is category [1]; if Dunn had committed the petty theft today, it would still be a felony under the current version of PC 666. Section 666 makes petty theft with a prior a felony/misdemeanor wobbler when the defendant either has a conviction for a "super-strike" or is required to register as a sex offender under PC 290-290.024. As Dunn is a required sex offender under the applicable statutes, his petty theft, if committed today, would not necessarily be a misdemeanor. There is no statutory ambiguity to enable further legal argument.
But Dunn does find an angle to argue further. Section 666 differs from other crimes that were reduced by Proposition 47 from felonies to misdemeanors in that it contains the disjunctive disqualification of either a "super-strike" conviction or sex registration. Other Proposition 47 affected crimes, such as shoplifting, forgery, and possession of narcotics, only contain a conviction disqualification, meaning a sex registrant without a conviction (like Dunn) would remain eligible for PC 1170.18 relief. Dunn goes with this and argues it violates of the guarantees of equal protection under the law to treat petty-with-a-prior convictions differently than shoplifting, forgery, and drug possession. The panel finds Dunn is not similarly situated to defendants convicted of these different crimes, meaning there is no need for an equal protection analysis. Even, for sake of argument, were Dunn and such other defendants similarly situated, the panel finds the disparate treatment has a rational basis.
I wonder whether Dunn argued (assuming the facts allowed it) that his crime was also one of shoplifting, and invoked the statutory requirement that all acts of shoplifting, regardless of whether they constitute other crimes, must be prosecuted and punished as shoplifting. See my post on P v Garrett. That may have been another angle.
In 2012, Dunn is convicted of felony petty-theft-with-a-prior, under former PC 666(b). Following the November 4, 2014, passage of Proposition 47, Dunn returned to court in 2015 and petitioned the court to reduce his felony petty-with-a-prior to a misdemeanor pursuant to PC 1170.18. The trial court denies Dunn's petition and he appealed.
Here the Second District affirms the denial.
The issue is one of statutory construction. Section 1170.18 gives the court jurisdiction to reduce a pre-Proposition 47 felony conviction to a misdemeanor if [1] the felony is one that would have necessarily been a misdemeanor if committed after November 4, 2015, and [2] the petitioner does not have a prior conviction for a "super-strike", a list of offenses including murder and rape.
Dunn's problem is not category [2]. As he was only 14 at the time of his juvenile adjudication for rape, it is not a "conviction" for purposes here. The problem is category [1]; if Dunn had committed the petty theft today, it would still be a felony under the current version of PC 666. Section 666 makes petty theft with a prior a felony/misdemeanor wobbler when the defendant either has a conviction for a "super-strike" or is required to register as a sex offender under PC 290-290.024. As Dunn is a required sex offender under the applicable statutes, his petty theft, if committed today, would not necessarily be a misdemeanor. There is no statutory ambiguity to enable further legal argument.
But Dunn does find an angle to argue further. Section 666 differs from other crimes that were reduced by Proposition 47 from felonies to misdemeanors in that it contains the disjunctive disqualification of either a "super-strike" conviction or sex registration. Other Proposition 47 affected crimes, such as shoplifting, forgery, and possession of narcotics, only contain a conviction disqualification, meaning a sex registrant without a conviction (like Dunn) would remain eligible for PC 1170.18 relief. Dunn goes with this and argues it violates of the guarantees of equal protection under the law to treat petty-with-a-prior convictions differently than shoplifting, forgery, and drug possession. The panel finds Dunn is not similarly situated to defendants convicted of these different crimes, meaning there is no need for an equal protection analysis. Even, for sake of argument, were Dunn and such other defendants similarly situated, the panel finds the disparate treatment has a rational basis.
I wonder whether Dunn argued (assuming the facts allowed it) that his crime was also one of shoplifting, and invoked the statutory requirement that all acts of shoplifting, regardless of whether they constitute other crimes, must be prosecuted and punished as shoplifting. See my post on P v Garrett. That may have been another angle.
Wednesday, August 3, 2016
P v. Fromuth (6th) The Phrase "Motivated By", In PC 288.4, Means "Substantial Factor".
Mr. Fromuth, 30 years old, was surfing the Craigslist category "casual hookups/NSA" when he saw a posting by an attractive woman in his hometown. The posting did not specify the poster's age. Fromuth replied to the posting, whereupon the poster identified herself as being 15 years old. Fromuth then warned the poster to be careful due to her age and asked if perhaps she would like to do something else that day other than "hookup". She failed to respond.
Fromuth contacted the poster again. After much online communication, Fromuth and the poster arranged a meeting. Fromuth would bring "protection" because the poster was not on birth control and he assured his bed was not noisy and that he would perform pre-coitus oral sex on her to ensure a comfortable experience.
When Fromuth arrived at the poster's home to pick her up he found out that the 15-year old female with whom he had arranged a "hookup" was actually a middle-aged Monterey County Sheriff's Sergeant. Fromuth was arrested and charged with, among other crimes, violating PC 288.4.
The interpretation at issue is that of the words "motivated by". Fromuth argues this phrase means "substantial factor", meaning a conviction for violating 288.4 requires a jury find that an "unnatural or abnormal sexual interest in children" was a substantial factor in the defendant arranging the meeting. The Sixth District agrees, examining cases involving "hate crime" statutes that equated the phrase "motivated by" with the phrase "because of", a phrase interpreted to mean a "substantial factor".
However, it is a Pyrrhic victory for Fromuth. The panel holds that there was substantial evidence presented to the jury that Fromuth had an abnormal sexual interest in children and that same was a "substantial factor" in plans to meet a 15-year old girl. Neither was the trial sua sponte required to give a "substantial factor" instruction.
Fromuth's last shot was to argue the court erroneously denied his requested instruction regarding entrapment. This misses the mark also, says the panel. The good Sergeant did nothing at his keyboard other than provide an opportunity for Fromuth to arrange the illegal tryst. Notably, when Fromuth learned "Maria" was 15 and suggested they do something other than "hookup", the Sergeant stopped communicating with Fromuth. The communications resumed only because Fromuth, unprompted, re-initiated the "hookup" dialogue with "Maria".
Madoff Investments, Trump University, Nigerian princes, and beautiful women desiring casual sex with Craigslist readers = proof that something that sounds too good to be true, is.
Fromuth contacted the poster again. After much online communication, Fromuth and the poster arranged a meeting. Fromuth would bring "protection" because the poster was not on birth control and he assured his bed was not noisy and that he would perform pre-coitus oral sex on her to ensure a comfortable experience.
When Fromuth arrived at the poster's home to pick her up he found out that the 15-year old female with whom he had arranged a "hookup" was actually a middle-aged Monterey County Sheriff's Sergeant. Fromuth was arrested and charged with, among other crimes, violating PC 288.4.
Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of . . . engaging in lewd or lascivious behavior” and “who goes to the arranged meeting place at or about the arranged time” commits a felony.A jury convicted Fromuth of this count and Fromuth appealed. The Sixth District, agrees with Fromuth's statutory interpretation of 288.4, but affirms the conviction.
The interpretation at issue is that of the words "motivated by". Fromuth argues this phrase means "substantial factor", meaning a conviction for violating 288.4 requires a jury find that an "unnatural or abnormal sexual interest in children" was a substantial factor in the defendant arranging the meeting. The Sixth District agrees, examining cases involving "hate crime" statutes that equated the phrase "motivated by" with the phrase "because of", a phrase interpreted to mean a "substantial factor".
However, it is a Pyrrhic victory for Fromuth. The panel holds that there was substantial evidence presented to the jury that Fromuth had an abnormal sexual interest in children and that same was a "substantial factor" in plans to meet a 15-year old girl. Neither was the trial sua sponte required to give a "substantial factor" instruction.
Fromuth's last shot was to argue the court erroneously denied his requested instruction regarding entrapment. This misses the mark also, says the panel. The good Sergeant did nothing at his keyboard other than provide an opportunity for Fromuth to arrange the illegal tryst. Notably, when Fromuth learned "Maria" was 15 and suggested they do something other than "hookup", the Sergeant stopped communicating with Fromuth. The communications resumed only because Fromuth, unprompted, re-initiated the "hookup" dialogue with "Maria".
Madoff Investments, Trump University, Nigerian princes, and beautiful women desiring casual sex with Craigslist readers = proof that something that sounds too good to be true, is.
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