2006, Mr. Sauceda was convicted of violating California Vehicle Code Section 10851 and sentenced to prison. Following the 2014 passage of Proposition 47, Sauceda petitioned the trial court to reduce his 10851 conviction to a misdemeanor, arguing that, if committed today, his crime would have necessarily been a misdemeanor via PC 490.2. The trial court denied his petition and he appealed.
The Fifth District affirms.
As in many similar opinions, the result is defensible but not the analysis. Although avoided, the real issue is the intersection of VC 10851, PC 490.2, and PC 487(d)(1). Vehicle Code section 10851, the statute of conviction, criminalizes "taking or driving" someone else's vehicle, with the intent to either temporarily or permanently deprive the owner of possession. Penal Code section 487(d)(1) defines a form of grand theft as taking someone else's car with the intent to permanently deprive the owner of possession. Penal Code section 490.2 (added via 2014's Proposition 47) makes theft of "any property" a misdemeanor if the value of the property is 950 dollars or less.
This case could have wisely been decided on the basis that the facts of Sauceda's conviction were not within the record. For reasons indiscernible, the panel unnecessarily extends its analysis and in doing so demonstrates its ineptitude.
Because the factual basis of Sauceda's conviction are not within the record, two scenarios are possible. First, Sauceda drove the car, without the owner's permission, with an intent to temporarily deprive the owner of her interest (read, "joy riding"). The alternative scenario is that Sauceda drove, or took, the car with the intent to permanently deprive the owner of her interest (read "stole the car").
If the former scenario is true, the issue is whether a necessarily lesser included offenses may be punished more severely than the greater offense. Had Sauceda taken the car with an intent to permanently deprive the owner of her interest, this would have been a "theft", arguably falling within the more specific statute of PC 487(d)(1) which is subsumed by PC 490.2 when the car is a hoopty (worth less than 950 bucks). On the other hand, had Sauceda been joy riding, such a crime would be a necessarily lesser included of PC 487(d)(1), creating the issue of whether a necessarily lesser included crime may be punished more severely than its greater.
Avoiding both of these issues, the panel here phrases the issue as whether Proposition 47 sought to modify VC 10851, an inadequately veiled example of ignoratio elenchi. The answer to this question can only be "no", as it textually did not modify 10851. However such framing does nothing to address the actual legal issues at play.
A more adroit panel would have simply affirmed the denial because the appellate record did not specify a factual basis upon which the trial court could have been said to have erred (value of the car; whether it was a theft or joyride). Instead it issues a misguided opinion that leads any learned reader to question its competence.
Saturday, September 24, 2016
Thursday, September 22, 2016
P v. Huerta (4th Dist, Div.2) Liberal Pleading Amendment Rule Applies to PC 1170.18; Mandatory Charging Language in PC 459.5 Requires Affirmance
In 2009, Ms. Huerta and a companion walked into a Sears department store and tried to steal several bottles of perfume. A store detective caught them as they tried to leave the store. Huerta had 463 dollars of perfume in her bag and her companion had 174.50 dollars worth in her bag.
The State charged Huerta with, among other crimes, second degree felony burglary. Huerta pleaded to the felony burglary charge and received 16 months in the state prison.
In 2015, Huerta returned to the trial court and filed a petition under PC 1170.18 to reduce her 2009 burglary conviction to a misdemeanor. In the petition, Huerta's lawyer claimed that the burglary involved property worth less than 950 dollars. The State responded only that Huerta had the burden to prove her eligibility. The trial court set the matter for a hearing.
At the hearing, Huerta's lawyer said the perfumes Huerta took were worth 463 dollars and those her companion took were worth 174.50 dollars. The State did not object to these amounts but argued that Huerta was not eligible for relief because she went into Sears with an accomplice. This fact, the State argued, provided proof of an uncharged conspiracy. So since Huerta went into the store to commit a conspiracy, her crime did not fall under the PC 459.5 definition of shoplifting. The trial court granted the petition and reduced Huerta's conviction to a misdemeanor. The State's Attorneys (led by their chief job-holder Ms. Harris) , having not yet exhausted their zeal for gormless resistance to the clear will of their client, appealed.
The Fourth District affirms.
The State's first argument is that the trial court erred when it did not summarily dismiss Huerta's petition upon receipt. I'm sure the attorney for the State thought this a clever argument since it was the Second Division of the Fourth District that decided P v. Perkins, which held a petitioner had the burden to include some form of evidence with her pleading. The panel properly slaps down this casuistry. Although unmentioned, Perkins was decided on January of 2016, while Huerta filed her petition in April of 2015. As the text of 1170.18 gives no guidance on what procedures are appropriate, this argument evinces this particular State attorney to be wont to make arguments I can only describe as (to quote "Time Bandits") "pure concentrated evil".
The panel, for good measure, goes on to demonstrate that even if the State attorney's malefic argument were worthy of consideration, (s)he still loses. As our courts are to liberally allow pleadings to be amended when there is a "reasonable possibility" the defect can be cured, the panel states that had the trial court summarily denied Huerta's petition for the reasons asserted by the State, such a denial would have been an abuse of discretion.
Apparently incapable of embarrassment, the State has another argument. Since Huerta went into Sears to steal perfumes with a companion, her intent upon entry was not just to commit larceny, but to also commit the crime of conspiracy. The panel disposes of this argument quickly. First, Huerta's conviction was for entering Sears with an intent to steal perfume. The issue in a 1170.18 petition is whether the crime of conviction would have been a misdemeanor following the November 4, 2014, amendments to the Penal Code. And had Huerta walked into Sears to steal 473 dollars of perfumes on November 5, 2014, her crime would have been a misdemeanor under PC 459.5.
Furthermore, even if indulged, the argument that Huerta is ineligible for relief because she entered Sears with an intent to commit the crime of conspiracy fails upon the application of a mere scintilla of logic. Conspiracy, the crime of agreement, requires an intent to commit a target crime. And here the target crime could only have been the theft of perfume. So the argument collapses upon itself; even if Huerta was guilty of walking into Sears with the intent to commit the crime of conspiracy, she necessarily was also guilty of walking into Sears with the intent to commit theft under 950 dollars.
According to the plain language of PC 459.5, whenever a crime can be charged as shoplifting, it shall be charged as shoplifting.
[note to the panel in P v. Varner: (blog post here, opinion here) Look at how Huerta's petition is affirmed even though her crime of conviction, PC 459, doesn't appear within PC 1170.18]
The State charged Huerta with, among other crimes, second degree felony burglary. Huerta pleaded to the felony burglary charge and received 16 months in the state prison.
In 2015, Huerta returned to the trial court and filed a petition under PC 1170.18 to reduce her 2009 burglary conviction to a misdemeanor. In the petition, Huerta's lawyer claimed that the burglary involved property worth less than 950 dollars. The State responded only that Huerta had the burden to prove her eligibility. The trial court set the matter for a hearing.
At the hearing, Huerta's lawyer said the perfumes Huerta took were worth 463 dollars and those her companion took were worth 174.50 dollars. The State did not object to these amounts but argued that Huerta was not eligible for relief because she went into Sears with an accomplice. This fact, the State argued, provided proof of an uncharged conspiracy. So since Huerta went into the store to commit a conspiracy, her crime did not fall under the PC 459.5 definition of shoplifting. The trial court granted the petition and reduced Huerta's conviction to a misdemeanor. The State's Attorneys (led by their chief job-holder Ms. Harris) , having not yet exhausted their zeal for gormless resistance to the clear will of their client, appealed.
The Fourth District affirms.
The State's first argument is that the trial court erred when it did not summarily dismiss Huerta's petition upon receipt. I'm sure the attorney for the State thought this a clever argument since it was the Second Division of the Fourth District that decided P v. Perkins, which held a petitioner had the burden to include some form of evidence with her pleading. The panel properly slaps down this casuistry. Although unmentioned, Perkins was decided on January of 2016, while Huerta filed her petition in April of 2015. As the text of 1170.18 gives no guidance on what procedures are appropriate, this argument evinces this particular State attorney to be wont to make arguments I can only describe as (to quote "Time Bandits") "pure concentrated evil".
The panel, for good measure, goes on to demonstrate that even if the State attorney's malefic argument were worthy of consideration, (s)he still loses. As our courts are to liberally allow pleadings to be amended when there is a "reasonable possibility" the defect can be cured, the panel states that had the trial court summarily denied Huerta's petition for the reasons asserted by the State, such a denial would have been an abuse of discretion.
Apparently incapable of embarrassment, the State has another argument. Since Huerta went into Sears to steal perfumes with a companion, her intent upon entry was not just to commit larceny, but to also commit the crime of conspiracy. The panel disposes of this argument quickly. First, Huerta's conviction was for entering Sears with an intent to steal perfume. The issue in a 1170.18 petition is whether the crime of conviction would have been a misdemeanor following the November 4, 2014, amendments to the Penal Code. And had Huerta walked into Sears to steal 473 dollars of perfumes on November 5, 2014, her crime would have been a misdemeanor under PC 459.5.
Furthermore, even if indulged, the argument that Huerta is ineligible for relief because she entered Sears with an intent to commit the crime of conspiracy fails upon the application of a mere scintilla of logic. Conspiracy, the crime of agreement, requires an intent to commit a target crime. And here the target crime could only have been the theft of perfume. So the argument collapses upon itself; even if Huerta was guilty of walking into Sears with the intent to commit the crime of conspiracy, she necessarily was also guilty of walking into Sears with the intent to commit theft under 950 dollars.
According to the plain language of PC 459.5, whenever a crime can be charged as shoplifting, it shall be charged as shoplifting.
[note to the panel in P v. Varner: (blog post here, opinion here) Look at how Huerta's petition is affirmed even though her crime of conviction, PC 459, doesn't appear within PC 1170.18]
Wednesday, September 21, 2016
In re J.G. (1st Dist, Div.3) Juvenile Court's Finding that Ward's Completion of Probation was "Unsatisfactory" Reversed For Legal Misinterpretation of WI 786
2011 was an eventful year for Master J.G. In January, he admitted to burglarizing a residence, was made a ward of the juvenile court based on same, and was ordered to complete a nine-month "Youth Rehabilitation Center" (YRC) program. Additionally, J.G. was ordered to pay 2,200 dollars in restitution.
After this rough start to 2011, J.G. turned it around quickly. He completed the requirements of the nine-month YRC program after only six months, received excellent reviews from the YRC staff, and was released early on [sic] "parole". In December of 2011, J.G. returned to the juvenile court for a "parole" review. According to his mom, J.G. was doing great at school, following her rules at home, doing his chores, and holding down a part time job at a local eatery. The probation officer reported that all of J.G.'s drug tests had been negative and that he was in compliance with the court's orders. The juvenile court then terminated his "parole" successfully, but continued J.G. as a ward of the court.
Fast forward to 2016, when the probation department requested the court to terminate J.G.'s wardship as he was now 22 and beyond the jurisdiction of the juvenile court. The sole issue was whether the court should order J.G.'s probation be terminated "satisfactorily" or "unsatisfactorily". This is important (as we'll later see).
The State argued that J.G.'s performance was not satisfactory because he did not pay any of the 2,200 dollars of restitution ordered. J.G. countered with a citation to Welfare and Institutions Code section 786 which provides, in pertinent part,
The First District reverses and remands to the juvenile court to enter a finding of "satisfactory" completion.
The reason this is a big deal for J.G. is because upon a "satisfactory finding", he is entitled to have his case dismissed, his court files sealed, attendant records in the hands of law enforcement sealed, and his arrest is deemed to have never occurred. It is an important component of the juvenile legal system that youngsters who turn it around are to have their slates wiped clean and not have their adult lives restricted for some pubescent monkeyshines.
The issue really revolves around the statutory language above and the juvenile court's two findings. Both findings are wrong, but the panel, with admirable judicial restraint, recognizes that correction the second error (the finding of a lack of jurisdiction to convert restitution to a civil judgment) resolves the issue.
While juvenile courts lose general jurisdiction over wards at particular ages (depending on the particular case), they retain jurisdiction for purposes of restitution. Thus the juvenile court's finding that it could base an unsatisfactory finding on unpaid restitution because it no longer had the ability to convert the restitution to a civil judgment was wrong. It actually had the jurisdiction to convert the order to a civil judgment, thus the outstanding restitution could not provide a basis for an unsatisfactory finding, even if its first finding was correct.
The other error, IMEO, is the first finding. The statutory language is unambiguous that the subject "unfulfilled order or condition of restitution" is not limited by the phrase, " including a restitution fine that can be converted to a civil judgment under Section 730.6". Rather, as indicated by the word "including", the former phrase is more expansive and limited only by its ordinary meaning.
But this matters not. Since juvenile courts retain jurisdiction for purposes of converting restitution to civil judgments, J.G. and those similarly situated, cannot be denied the benefits of a satisfactory finding based solely on their (lack of) wealth.
After this rough start to 2011, J.G. turned it around quickly. He completed the requirements of the nine-month YRC program after only six months, received excellent reviews from the YRC staff, and was released early on [sic] "parole". In December of 2011, J.G. returned to the juvenile court for a "parole" review. According to his mom, J.G. was doing great at school, following her rules at home, doing his chores, and holding down a part time job at a local eatery. The probation officer reported that all of J.G.'s drug tests had been negative and that he was in compliance with the court's orders. The juvenile court then terminated his "parole" successfully, but continued J.G. as a ward of the court.
Fast forward to 2016, when the probation department requested the court to terminate J.G.'s wardship as he was now 22 and beyond the jurisdiction of the juvenile court. The sole issue was whether the court should order J.G.'s probation be terminated "satisfactorily" or "unsatisfactorily". This is important (as we'll later see).
The State argued that J.G.'s performance was not satisfactory because he did not pay any of the 2,200 dollars of restitution ordered. J.G. countered with a citation to Welfare and Institutions Code section 786 which provides, in pertinent part,
An unfulfilled order or condition of restitution, including a restitution fine that can be converted to a civil judgment under Section 730.6 or an unpaid restitution fee shall not be deemed to constitute unsatisfactory completion of supervision or probation under this section.The juvenile court interpreted this statute to apply only to unpaid restitution that can be converted to a civil judgment under 730.6. Then the juvenile court found that since J.G. was 22 (beyond the jurisdictional age) it could not convert the restitution to a civil judgment under 730.6. Deeming J.G.'s unpaid restitution beyond the scope of 786, the juvenile court used it to find J.G.'s completion of probation "unsatisfactory". J.G. appealed.
The First District reverses and remands to the juvenile court to enter a finding of "satisfactory" completion.
The reason this is a big deal for J.G. is because upon a "satisfactory finding", he is entitled to have his case dismissed, his court files sealed, attendant records in the hands of law enforcement sealed, and his arrest is deemed to have never occurred. It is an important component of the juvenile legal system that youngsters who turn it around are to have their slates wiped clean and not have their adult lives restricted for some pubescent monkeyshines.
The issue really revolves around the statutory language above and the juvenile court's two findings. Both findings are wrong, but the panel, with admirable judicial restraint, recognizes that correction the second error (the finding of a lack of jurisdiction to convert restitution to a civil judgment) resolves the issue.
While juvenile courts lose general jurisdiction over wards at particular ages (depending on the particular case), they retain jurisdiction for purposes of restitution. Thus the juvenile court's finding that it could base an unsatisfactory finding on unpaid restitution because it no longer had the ability to convert the restitution to a civil judgment was wrong. It actually had the jurisdiction to convert the order to a civil judgment, thus the outstanding restitution could not provide a basis for an unsatisfactory finding, even if its first finding was correct.
The other error, IMEO, is the first finding. The statutory language is unambiguous that the subject "unfulfilled order or condition of restitution" is not limited by the phrase, " including a restitution fine that can be converted to a civil judgment under Section 730.6". Rather, as indicated by the word "including", the former phrase is more expansive and limited only by its ordinary meaning.
But this matters not. Since juvenile courts retain jurisdiction for purposes of converting restitution to civil judgments, J.G. and those similarly situated, cannot be denied the benefits of a satisfactory finding based solely on their (lack of) wealth.
Monday, September 19, 2016
In re Ilasa (4th Dist, Div.1) Agreement in Federal Litigation of California Prison Conditions Created Constitutional Liberty Interest; Some Evidence Supports Denial
Before I begin, let me say this case presents a difficult question and this panel responds with admirable competence.
Mr. Ilasa was convicted in 2010 of being a felony in possession of a gun with a gang enhancement. Ilasa had a previous "strike" conviction. For his misdeeds he received a nine year prison sentence. Three years for the gun charge, doubled to six years via his prior "strike", plus three years for the gang enhancement.
Between then and now there was a matter of a federal lawsuit concerning the constitutionality of California's prison conditions. The acme of the litigation found the United States Supreme Court affirming a finding that California's present conditions violated our nation's Constitution.
One result was that a panel of three federal judges was tasked with negotiating with the State to effect changes in the prison system that would result in the system passing Constitutional muster. One of the changes agreed to, by the State and the panel, was that non-violent "second strikers" would become eligible for parole once they had served half of their original sentence. It was further agreed that the standard for whether such a prisoner would be released on parole would consist of determining if the prisoner posed an "unreasonable risk of violence in the community".
Once Ilasa had served half his nine-year sentence, his case was deemed eligible for parole and brought before the parole board. After examining his current offense, prior record, institutional behavior, and medical status, the board determined Ilasa posed an unreasonable risk of violence to the community and denied his release. Ilasa petitioned the trial court for a writ of habeas corpus and was denied. He then petitioned the appellate court, which considers his petition on its merits and enters a denial.
I repeat that this case presents a difficult legal issue and that the panel faces it head-on and issues an admirable opinion. The first issue is whether this State-federal judicial panel agreement concerning this ad hoc "non-violent second striker" rule creates a Constitutional liberty interest. This is not an easy question. The California Penal Code would have Ilasa serve 80% of his sentence before release. No California regulation gives Ilasa the opportunity for release after serving half his sentence, rather it is this "agreement" between the executive branch of California and the federal judicial panel, whose findings of a Constitutional violation were affirmed by the U.S. Supreme Court,that provides Ilasa an expectation of release.
The panel makes two findings at the outset. First, that this "agreement" creates an expectation of release and thus a protected liberty interest on the part of Ilasa. Second, the "some evidence" standard governs whether Ilasa's protected liberty interest was violated by the parole board when it found him unfit for release.
The result of the first finding is that the panel must address the second. Examining the second, the panel finds some evidence supports the parole board's finding. Ilasa not only possessed a pistol as a felon, he had a cache of ammunition, a rifle in his closet, an additional loaded magazine, and three red bandanas (the color of his gang) in his possession. Combined with Ilasa's criminal history, the result is that "some evidence" supports the parole board's finding that Ilasa's early release would create an unreasonable risk of violence to the community. Ilasa's petition is denied on the merits.
Mr. Ilasa was convicted in 2010 of being a felony in possession of a gun with a gang enhancement. Ilasa had a previous "strike" conviction. For his misdeeds he received a nine year prison sentence. Three years for the gun charge, doubled to six years via his prior "strike", plus three years for the gang enhancement.
Between then and now there was a matter of a federal lawsuit concerning the constitutionality of California's prison conditions. The acme of the litigation found the United States Supreme Court affirming a finding that California's present conditions violated our nation's Constitution.
One result was that a panel of three federal judges was tasked with negotiating with the State to effect changes in the prison system that would result in the system passing Constitutional muster. One of the changes agreed to, by the State and the panel, was that non-violent "second strikers" would become eligible for parole once they had served half of their original sentence. It was further agreed that the standard for whether such a prisoner would be released on parole would consist of determining if the prisoner posed an "unreasonable risk of violence in the community".
Once Ilasa had served half his nine-year sentence, his case was deemed eligible for parole and brought before the parole board. After examining his current offense, prior record, institutional behavior, and medical status, the board determined Ilasa posed an unreasonable risk of violence to the community and denied his release. Ilasa petitioned the trial court for a writ of habeas corpus and was denied. He then petitioned the appellate court, which considers his petition on its merits and enters a denial.
I repeat that this case presents a difficult legal issue and that the panel faces it head-on and issues an admirable opinion. The first issue is whether this State-federal judicial panel agreement concerning this ad hoc "non-violent second striker" rule creates a Constitutional liberty interest. This is not an easy question. The California Penal Code would have Ilasa serve 80% of his sentence before release. No California regulation gives Ilasa the opportunity for release after serving half his sentence, rather it is this "agreement" between the executive branch of California and the federal judicial panel, whose findings of a Constitutional violation were affirmed by the U.S. Supreme Court,that provides Ilasa an expectation of release.
The panel makes two findings at the outset. First, that this "agreement" creates an expectation of release and thus a protected liberty interest on the part of Ilasa. Second, the "some evidence" standard governs whether Ilasa's protected liberty interest was violated by the parole board when it found him unfit for release.
The result of the first finding is that the panel must address the second. Examining the second, the panel finds some evidence supports the parole board's finding. Ilasa not only possessed a pistol as a felon, he had a cache of ammunition, a rifle in his closet, an additional loaded magazine, and three red bandanas (the color of his gang) in his possession. Combined with Ilasa's criminal history, the result is that "some evidence" supports the parole board's finding that Ilasa's early release would create an unreasonable risk of violence to the community. Ilasa's petition is denied on the merits.
P v. White (2nd Dist, Div.5) "Sexually Violent Criminal Behavior" is Distinct From "Sexually Violent Offense" Under California's Sexually Violent Predator Law.
Mr. White's criminal convictions include the following.
In 1979, assault with intent to commit rape;
In 1981, immoral acts before a child;
In 1983, indecent exposure;
In 1984, battery for fondling a woman's butt;
In 1998, sexual battery for pinning a woman against a wall and fondling her butt and breasts;
In 1999, battery for bumping his penis into a woman's butt; and,
In 2001, sexual battery.
Following White's release from prison, the State sought to have White civilly committed as a Sexually Violent Predator (SVP). Following a trial on this issue, White was found to satisfy the criteria for an SVP and was committed as requested. He appealed.
The Second District affirms.
To civilly commit a person as a SVP, California law requires that the State prove, among other facts, the person [1] has a conviction for a "sexually violent offense", [2] suffers from a diagnosed mental disorder that makes the person a danger to the health and safety of others, and [3] the mental disorder makes it likely the person will engage in "sexually violent criminal behavior".
The issue here is the definition of "sexually violent criminal behavior" in [3], specifically whether it is tantamount to "sexually violent offense" in [1]. "Sexually violent offense" is defined by reference to enumerated crimes, one of which is assault with intent to commit rape. However, the trial testimony of various experts did not assert that White's mental disorders were likely to make him engage in any "sexually violent offense[s]" in the future. Rather White's disorders, including Frotteuristic disorder (fantasy of and compulsion to, rub one's erect penis against strangers), were likely to result in White continuing to commit the crime of sexual battery, a crime that does not fall within the legal definition of "sexually violent offense". The upshot is that the case turns on whether the State proved element [3], which depends on the definition of "sexually violent criminal behavior".
If "sexually violent criminal behavior" means committing a "sexually violent offense", White would prevail, as there was no evidence his mental disorders made it likely he would commit such an offense. However if the former is a phrase to be analyzed by using its words' common meanings, White would lose. "Violent" is commonly understood to mean the use of force for an unlawful purpose. Ramming one's penis into the butt of an unsuspecting woman is undoubtedly sexual, involves violence, and is criminal.
The panel examines the statutory language and concludes, quite reasonably IMEO, that by using different words to define elements [1] (sexually violent offense) and [3] (sexually violent criminal behavior), the legislature meant to confer different definitions. As the phrase "sexually violent criminal behavior" is not statutorily defined, the panel interprets the phrase using the words' common meanings. The result is as predicted in the latter part of the previous paragraph.
For those interested, I performed some cursory research on White's disorder, of which I had never heard. "Frotteuristic disorder" originates from the French word "Frotteur" meaning "one who rubs". The disorder was first identified by French psychiatrist Valentin Magnan.
In 1979, assault with intent to commit rape;
In 1981, immoral acts before a child;
In 1983, indecent exposure;
In 1984, battery for fondling a woman's butt;
In 1998, sexual battery for pinning a woman against a wall and fondling her butt and breasts;
In 1999, battery for bumping his penis into a woman's butt; and,
In 2001, sexual battery.
Following White's release from prison, the State sought to have White civilly committed as a Sexually Violent Predator (SVP). Following a trial on this issue, White was found to satisfy the criteria for an SVP and was committed as requested. He appealed.
The Second District affirms.
To civilly commit a person as a SVP, California law requires that the State prove, among other facts, the person [1] has a conviction for a "sexually violent offense", [2] suffers from a diagnosed mental disorder that makes the person a danger to the health and safety of others, and [3] the mental disorder makes it likely the person will engage in "sexually violent criminal behavior".
The issue here is the definition of "sexually violent criminal behavior" in [3], specifically whether it is tantamount to "sexually violent offense" in [1]. "Sexually violent offense" is defined by reference to enumerated crimes, one of which is assault with intent to commit rape. However, the trial testimony of various experts did not assert that White's mental disorders were likely to make him engage in any "sexually violent offense[s]" in the future. Rather White's disorders, including Frotteuristic disorder (fantasy of and compulsion to, rub one's erect penis against strangers), were likely to result in White continuing to commit the crime of sexual battery, a crime that does not fall within the legal definition of "sexually violent offense". The upshot is that the case turns on whether the State proved element [3], which depends on the definition of "sexually violent criminal behavior".
If "sexually violent criminal behavior" means committing a "sexually violent offense", White would prevail, as there was no evidence his mental disorders made it likely he would commit such an offense. However if the former is a phrase to be analyzed by using its words' common meanings, White would lose. "Violent" is commonly understood to mean the use of force for an unlawful purpose. Ramming one's penis into the butt of an unsuspecting woman is undoubtedly sexual, involves violence, and is criminal.
The panel examines the statutory language and concludes, quite reasonably IMEO, that by using different words to define elements [1] (sexually violent offense) and [3] (sexually violent criminal behavior), the legislature meant to confer different definitions. As the phrase "sexually violent criminal behavior" is not statutorily defined, the panel interprets the phrase using the words' common meanings. The result is as predicted in the latter part of the previous paragraph.
For those interested, I performed some cursory research on White's disorder, of which I had never heard. "Frotteuristic disorder" originates from the French word "Frotteur" meaning "one who rubs". The disorder was first identified by French psychiatrist Valentin Magnan.
Thursday, September 15, 2016
P v. Varner (4th Dist, Div.2) PC 496d(a) Conviction Categorically Ineligible for Relief Pursuant to PC 1170.18
In the summer of 2014, Mr. Varner pleaded guilty to possession of a stolen motorcycle pursuant to PC 496d(a). March of 2015, Varner petitioned the trial court, via PC 1170.18, to reduce his 496d conviction to a misdemeanor and asserted the value of the motorcycle was less than 950 dollars. The trial court denied the petition, ruling that a PC 496d conviction was categorically ineligible for relief. Varner appealed.
The Fourth District affirms.
The issue of whether a PC 496d conviction, when the vehicle is worth less than 950 dollars, is eligible for PC 1170.18 relief is currently before the California Supreme Court. Why this panel would embarrass itself by publishing an opinion of this quality in the interim is puzzling.
The opinion gets it wrong from the start, justifying its decision on these grounds:
Varner's argument is that, if committed after November 4, 2014, his crime of possessing a stolen motorcycle worth less than 950 dollars would have necessarily been a misdemeanor by way of Proposition 47's amendment to PC 496, that the 2014 amendment to PC 496 subsumed a subset of 496d convictions, and he is entitled to resentencing under PC 496 (one of the enumerated statutes of resentencing).
The panel disingenuously glosses over this issue, which IMEO can reasonably go either way. On one hand, 496 was amended more recently and deems possession of "any property that has been stolen" a misdemeanor if worth less than 950 dollars. On the other hand PC 496d, amended last in 2011, makes the possession of a stolen vehicle a wobbler regardless of value. One of these two statutes must trump the other in circumstances such as present here. The interpretative tools of "most recent controls" and "the specific trumps the general" may provide an answer. Or they may not, requiring a look into the ballot materials of the November 2014 initiative behind the amendments.
Sadly this opinion doesn't even try.
The Fourth District affirms.
The issue of whether a PC 496d conviction, when the vehicle is worth less than 950 dollars, is eligible for PC 1170.18 relief is currently before the California Supreme Court. Why this panel would embarrass itself by publishing an opinion of this quality in the interim is puzzling.
The opinion gets it wrong from the start, justifying its decision on these grounds:
The trial court did not err because section 496d is not included in section 1170.18.This statement (at best) misstates the issue. As I have stated before, PC 1170.18 has two parts. The first part requires determining whether the felony conviction at issue would necessarily have been a misdemeanor if it was committed after November 4, 2014. If the conviction would necessarily be a misdemeanor, resentencing may occur under one of the enumerated statutes. Because a particular statute of conviction is not mentioned within the enumerated resentencing statutes does not (and cannot) mean it is categorically ineligible. Example A: PC 459 is not mentioned in 1170.18. However, a 2013 PC 459 conviction for going into a gas station to steal a can of pop is, without dispute, eligible for relief under 1170.18. This is because PC 459.5, added to the penal code via Proposition 47, subsumes certain 459 convictions. The fact that PC 459 appears nowhere in PC 1170.18 does not mean PC 459 convictions are categorically ineligible.
Varner's argument is that, if committed after November 4, 2014, his crime of possessing a stolen motorcycle worth less than 950 dollars would have necessarily been a misdemeanor by way of Proposition 47's amendment to PC 496, that the 2014 amendment to PC 496 subsumed a subset of 496d convictions, and he is entitled to resentencing under PC 496 (one of the enumerated statutes of resentencing).
The panel disingenuously glosses over this issue, which IMEO can reasonably go either way. On one hand, 496 was amended more recently and deems possession of "any property that has been stolen" a misdemeanor if worth less than 950 dollars. On the other hand PC 496d, amended last in 2011, makes the possession of a stolen vehicle a wobbler regardless of value. One of these two statutes must trump the other in circumstances such as present here. The interpretative tools of "most recent controls" and "the specific trumps the general" may provide an answer. Or they may not, requiring a look into the ballot materials of the November 2014 initiative behind the amendments.
Sadly this opinion doesn't even try.
Wednesday, September 14, 2016
P v. Cortez (4th Dist, Div.3) Granting a PC 1170.18 Petition Allows a Trial Court to Increase Sentences on Other Misdemeanor Counts (aka California's Next Senator Continues Her War Against Criminal Justice Reform)
Back in 2012, Mr. Cortez was charged with, and pleaded guilty to, three related crimes. Count one was felony possession of methamphetamine (HS 11377(a)), count two was possession of drug paraphernalia (HS 11364.1(a)), a misdemeanor, and count three was being under the influence of methamphetamine (HS 11550), also a misdemeanor.
Following an unsuccessful stint on probation, Cortez was sentenced as follows: sixteen months in prison for count one, six months in the county jail, concurrent, on count two, and another six months concurrent on count three. The upshot was that Cortez's total effective sentence was sixteen months.
Comes 2015 and Cortez, now out of prison, petitions the trial court to reduce his felony methamphetamine possession conviction to a misdemeanor via PC 1170.18. The trial court grants the petition and resentences Cortez to 364 days on the HS 11377. But, not wanting this man once down to rise, delivers a malefic kick by resentencing Cortez on the two other misdemeanors. It recalls the concurrent sentences on counts two and three and resentences Cortez on the HS 11364.1 to 129 days consecutive. In an unimpressive show of restraint, it resentences Cortez to 129 days concurrent on the HS 11550. None of this really matters as Cortez has custody credits in excess of the revised sentence, but Cortez (as he should) appeals anyway.
The Fourth District affirms.
This opinion would be irritating if it was artful or persuasive. Instead it is just a unlettered reminder of the ineptitude and Sadism that sometimes results from endowing government job-holders with mastery over other people and the insecure reaction of aforementioned job-holders when the degree of unearned mastery is reduced.
The legal issue is one of statutory interpretation, specifically PC 1170.18. Normally when a defendant is committed to serve his sentence, the trial court loses jurisdiction over the case absent some exception. Here the exception is found in PC 1170.18. It is the reach of the exception that is at issue. Does the exception confer to the trial court jurisdiction to resentence as to the reduced felony only, or does it include the jurisdiction to also resentence as to other misdemeanor counts within the same pleading?
The panel, admirably, at least states how the issue should be analyzed. Unfortunately it never applies the rule (as doing so would preclude its chosen result) . Said rule is that you look at the text of the statute and at the outset determine whether the language is ambiguous or not. If unambiguous, you're done; just apply the language.
Here is the pertinent language.
Looking for some angle to impose its authority upon Cortez, the panel uses the unimpressive analogy of P v. Roach. In Roach, the defendant was sentenced for multiple felonies with the felony conviction at issue in the PC 1170.18 petition being the principal term for the aggregate felony sentence. After the petition was granted, PC 1170.1 required the trial court to choose another count to be the principal felony term. As the case dealt with a sentence comprised of multiple felony convictions, the opinion was reasonable. In Cortez's case however, PC 1170.1 is excrescent as no felonies remain.
So the panel resorts to arranging a plebeian word salad. To explain away the grammatically clear directive that "felony" modifies "conviction" and "sentence" in PC 1170.18, the panel states that such a plain meaning analysis is "myopic" because it ignores the "context of the statute". As the former critique relies upon the latter, what does the latter mean? The "context" of the statute is the damn penal code! What other part of the penal code supports the panel's interpretation? None.
Keen on placing its impotence out front for the reader to examine, the panel couches its result in the conclusion that the language "had been in affect" requires resentencing become an anachronistic event in which the parties imagine past events have occured in the present. Although meant to be clever, this trope actually cuts against the panel's viewpoint. The present, per the electorate's mandate, requires the punishment for the 11377(a) be reduced. The effect of the trial court's resentencing was to elevate the punishment as it chose the minimum punishment upon sentencing Cortez as a felon and, upon resentencing, capriciously changed its mind and imposed the maximum. Did any fact of Cortez's crime change in the interim to justify this switch? Without a TARDIS the answer can only be "no".
Hopefully this legal offal will eventually be rendered.
Following an unsuccessful stint on probation, Cortez was sentenced as follows: sixteen months in prison for count one, six months in the county jail, concurrent, on count two, and another six months concurrent on count three. The upshot was that Cortez's total effective sentence was sixteen months.
Comes 2015 and Cortez, now out of prison, petitions the trial court to reduce his felony methamphetamine possession conviction to a misdemeanor via PC 1170.18. The trial court grants the petition and resentences Cortez to 364 days on the HS 11377. But, not wanting this man once down to rise, delivers a malefic kick by resentencing Cortez on the two other misdemeanors. It recalls the concurrent sentences on counts two and three and resentences Cortez on the HS 11364.1 to 129 days consecutive. In an unimpressive show of restraint, it resentences Cortez to 129 days concurrent on the HS 11550. None of this really matters as Cortez has custody credits in excess of the revised sentence, but Cortez (as he should) appeals anyway.
The Fourth District affirms.
This opinion would be irritating if it was artful or persuasive. Instead it is just a unlettered reminder of the ineptitude and Sadism that sometimes results from endowing government job-holders with mastery over other people and the insecure reaction of aforementioned job-holders when the degree of unearned mastery is reduced.
The legal issue is one of statutory interpretation, specifically PC 1170.18. Normally when a defendant is committed to serve his sentence, the trial court loses jurisdiction over the case absent some exception. Here the exception is found in PC 1170.18. It is the reach of the exception that is at issue. Does the exception confer to the trial court jurisdiction to resentence as to the reduced felony only, or does it include the jurisdiction to also resentence as to other misdemeanor counts within the same pleading?
The panel, admirably, at least states how the issue should be analyzed. Unfortunately it never applies the rule (as doing so would preclude its chosen result) . Said rule is that you look at the text of the statute and at the outset determine whether the language is ambiguous or not. If unambiguous, you're done; just apply the language.
Here is the pertinent language.
A person currently serving a sentence for a conviction . . . of a felony . . . who would have been guilty of a misdemeanor . . . had this act been in effect at the time of the offense may petition for a recall of sentence . . . . If the petitioner satisfies the criteria . . . the petitioner’s felony sentence shall be recalled and the petitioner resentenced to a misdemeanor. (emphasis added)Is this language ambiguous as to whether "felony" modifies "conviction" and "sentence"? No. As my second grade teacher, Mrs. Mulheron, would tell us, it is the felony sentence that shall be recalled. There is nothing indicating attendant misdemeanor sentences shall (or may) be recalled.
Looking for some angle to impose its authority upon Cortez, the panel uses the unimpressive analogy of P v. Roach. In Roach, the defendant was sentenced for multiple felonies with the felony conviction at issue in the PC 1170.18 petition being the principal term for the aggregate felony sentence. After the petition was granted, PC 1170.1 required the trial court to choose another count to be the principal felony term. As the case dealt with a sentence comprised of multiple felony convictions, the opinion was reasonable. In Cortez's case however, PC 1170.1 is excrescent as no felonies remain.
So the panel resorts to arranging a plebeian word salad. To explain away the grammatically clear directive that "felony" modifies "conviction" and "sentence" in PC 1170.18, the panel states that such a plain meaning analysis is "myopic" because it ignores the "context of the statute". As the former critique relies upon the latter, what does the latter mean? The "context" of the statute is the damn penal code! What other part of the penal code supports the panel's interpretation? None.
Keen on placing its impotence out front for the reader to examine, the panel couches its result in the conclusion that the language "had been in affect" requires resentencing become an anachronistic event in which the parties imagine past events have occured in the present. Although meant to be clever, this trope actually cuts against the panel's viewpoint. The present, per the electorate's mandate, requires the punishment for the 11377(a) be reduced. The effect of the trial court's resentencing was to elevate the punishment as it chose the minimum punishment upon sentencing Cortez as a felon and, upon resentencing, capriciously changed its mind and imposed the maximum. Did any fact of Cortez's crime change in the interim to justify this switch? Without a TARDIS the answer can only be "no".
Hopefully this legal offal will eventually be rendered.
Wednesday, September 7, 2016
P v. Holm (1st Dist, Div.1) A Private Country Club is a "Commercial Establishment" For Purposes of PC 459.5
In 2013, Mr. Holm entered a private country club (of which he was not a member) and stole a TV and three boxes of golf balls. For this Holm was convicted of felony second degree burglary.
After the November 4, 2014, passage of Proposition 47, Holm petitioned the trial court, under PC 1170.18, to recall his felony conviction and resentence him for the misdemeanor crime of shoplifting. The trial court held a hearing on the petition where the club's CEO testified the TV was worth 670 dollars and each box of golf balls 50 dollars (total value 820 dollars, under the 950 limit). The trial court denied the petition on the basis that the private club was not a "commercial establishment" and thus Holm's crime did not fit within the definition of shoplifting in PC 459.5. Holm appealed.
The First District reverses and remands.
The sole issue is whether a the private country club is a "commercial establishment". This club has a golf course, a pro shop, a couple of restaurants, and a banquet hall. The three former are only for members but the latter most can be rented by nonmembers.
The opinion is disciplined and concise. It declines the State's invitation to skip over the statutory text and substitute the "common understanding" of the term "shoplifting", and instead engages in a meaningful examination of the statute. As in almost all similar opinions, the panel finds that "commercial" has the reasonably understood meaning of "engaged in the buying and selling of goods and services". And the club does just this, providing goods through its pro shop and restaurants and services through its golf course and banquet hall.
For good measure the panel also examines a California Supreme Court decision that found a male-only private country club was a commercial establishment for purposes of an anti-discrimination statute.
The case is now remanded back to the trial court where, unless it finds reducing Holm's conviction to a misdemeanor would pose an unreasonable risk to public safety, it give Holm a misdemeanor.
After the November 4, 2014, passage of Proposition 47, Holm petitioned the trial court, under PC 1170.18, to recall his felony conviction and resentence him for the misdemeanor crime of shoplifting. The trial court held a hearing on the petition where the club's CEO testified the TV was worth 670 dollars and each box of golf balls 50 dollars (total value 820 dollars, under the 950 limit). The trial court denied the petition on the basis that the private club was not a "commercial establishment" and thus Holm's crime did not fit within the definition of shoplifting in PC 459.5. Holm appealed.
The First District reverses and remands.
The sole issue is whether a the private country club is a "commercial establishment". This club has a golf course, a pro shop, a couple of restaurants, and a banquet hall. The three former are only for members but the latter most can be rented by nonmembers.
The opinion is disciplined and concise. It declines the State's invitation to skip over the statutory text and substitute the "common understanding" of the term "shoplifting", and instead engages in a meaningful examination of the statute. As in almost all similar opinions, the panel finds that "commercial" has the reasonably understood meaning of "engaged in the buying and selling of goods and services". And the club does just this, providing goods through its pro shop and restaurants and services through its golf course and banquet hall.
For good measure the panel also examines a California Supreme Court decision that found a male-only private country club was a commercial establishment for purposes of an anti-discrimination statute.
The case is now remanded back to the trial court where, unless it finds reducing Holm's conviction to a misdemeanor would pose an unreasonable risk to public safety, it give Holm a misdemeanor.
Thursday, September 1, 2016
Hopkins v. Superior Court (2nd Dist, Div.4) Military Veterans Suffering From Service-Related Injury Are Eligible for Pre-Trial Diversion for Misdemeanor DUI Charges
Mr. Hopkins is a combat veteran. He served in Afghanistan where he was responsible for the detention of Taliban and Al Qaeda operatives.
After coming home, Hopkins began to display signs of PTSD. In May of 2015, he began receiving treatment from the VA for his ailment. In August of 2015, he picked up a misdemeanor DUI charge.
Hopkins asked the trial court to give him a shot at diversion pursuant to PC 1001.80, a code section enacted in 2014 that allows trial courts, in misdemeanor cases, to place a veteran suffering from a service-related illness in a pre-trial diversion program to give the veteran an opportunity to avoid a criminal conviction. The trial judge in Los Angeles denied his request and the Appellate Division of the Los Angeles Superior Court denied his writ petition.
Now the Second District reverses (disagreeing with the Fourth District in P v. VanVleck).
This is one damn fine opinion. I am often critical of California appellate courts when they churn out plebeian opinions in which they substitute an undeserved air of infallibility in place of meaningful analysis. This opinion however is exemplary and belongs in a law school text.
The issue here is the intersection of two statutes, PC 1001.80 and VC 23640. Section 1001.80 says that "whenever" a military veteran suffering from a service-related illness is charged with a misdemeanor, the trial court may place him in a pre-trial diversion program. Section 23640 says that pre-trial diversion is prohibited in all DUI cases. You can see the problem.
The opinion recognizes the guidance the California Supreme Court has provided for cases involving inconsistent statutes. With admirable assiduousness the opinion applies each rule and, with refreshing intellectual honesty, shows how none of them resolve the issue. The finest portion of the opinion, IMEO, is when the panel applies the "specific trumps general" rule, revealing the rule's impotence.
How the question is framed provides the answer; you can choose your result. Section 1001.80 addresses "all misdemeanors" while 23640 addresses only DUI misdemeanors. So 23640 is the more specific and should prevail, right? Hold on. What if you describe 1001.80 as addressing misdemeanors committed by military veterans who are currently suffering from a small category of illnesses while 23640 addresses all DUIs? Now which one is more specific?
The most admirable aspect of this opinion is that, instead of framing the issue to give the result desired, the opinion explicitly acknowledges that the "specific v. general" rule provides no real answers. Once this is acknowledged, the opinion goes down the road of examining the legislative history behind section 1001.80 and ends up deciding that the legislature intended for 1001.80 to trump 23640.
I don't know if newly minted appellate court justices have an orientation program, but if they do, this opinion should be required reading.
After coming home, Hopkins began to display signs of PTSD. In May of 2015, he began receiving treatment from the VA for his ailment. In August of 2015, he picked up a misdemeanor DUI charge.
Hopkins asked the trial court to give him a shot at diversion pursuant to PC 1001.80, a code section enacted in 2014 that allows trial courts, in misdemeanor cases, to place a veteran suffering from a service-related illness in a pre-trial diversion program to give the veteran an opportunity to avoid a criminal conviction. The trial judge in Los Angeles denied his request and the Appellate Division of the Los Angeles Superior Court denied his writ petition.
Now the Second District reverses (disagreeing with the Fourth District in P v. VanVleck).
This is one damn fine opinion. I am often critical of California appellate courts when they churn out plebeian opinions in which they substitute an undeserved air of infallibility in place of meaningful analysis. This opinion however is exemplary and belongs in a law school text.
The issue here is the intersection of two statutes, PC 1001.80 and VC 23640. Section 1001.80 says that "whenever" a military veteran suffering from a service-related illness is charged with a misdemeanor, the trial court may place him in a pre-trial diversion program. Section 23640 says that pre-trial diversion is prohibited in all DUI cases. You can see the problem.
The opinion recognizes the guidance the California Supreme Court has provided for cases involving inconsistent statutes. With admirable assiduousness the opinion applies each rule and, with refreshing intellectual honesty, shows how none of them resolve the issue. The finest portion of the opinion, IMEO, is when the panel applies the "specific trumps general" rule, revealing the rule's impotence.
How the question is framed provides the answer; you can choose your result. Section 1001.80 addresses "all misdemeanors" while 23640 addresses only DUI misdemeanors. So 23640 is the more specific and should prevail, right? Hold on. What if you describe 1001.80 as addressing misdemeanors committed by military veterans who are currently suffering from a small category of illnesses while 23640 addresses all DUIs? Now which one is more specific?
The most admirable aspect of this opinion is that, instead of framing the issue to give the result desired, the opinion explicitly acknowledges that the "specific v. general" rule provides no real answers. Once this is acknowledged, the opinion goes down the road of examining the legislative history behind section 1001.80 and ends up deciding that the legislature intended for 1001.80 to trump 23640.
I don't know if newly minted appellate court justices have an orientation program, but if they do, this opinion should be required reading.
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