Early in 2014, Ms. Rendon was pulled over and her backpack searched. Inside her backpack were two counterfeit 100 dollar bills and three counterfeit 20 dollar bills. Also in the backpack were 200 "security strips" (the plastic strips woven into 100 bills), a couple dozen Benjamin Franklin image templates, and a wad of paper. For this, Redon was charged with, and pleaded guilty to, felony forgery, PC 476.
Later in 2014, after the November election, Rendon petitioned the trial court to reduce her 476 conviction to a misdemeanor under PC 1170.18. The trial court denied the petition because it found that while the forged bills were worth 230 dollars, the raw materials in the backpack were sufficient to make more than 950 dollars in forged bills, exceeding the 950 dollar misdemeanor/felony threshold. Rendon appealed.
The Third District reverses.
The panel disposes of the State's first argument by a simple statutory analysis. Section 476 criminalizes the possession of any fictitious bill or note, not blank paper, security strips, or templates. Because the sum of the fictitious bills in the backpack were 230 dollars, well below the 950 dollar threshold, Rendon's forgery conviction is eligible for relief.
The State then trots out the moth-ridden "benefit of the bargain" argument, asserting that they should be able to rescind the plea agreement if Rendon's petition is granted. This argument is premised on a 1978 case, P v. Collins. Admirably, the panel conducts a close reading of Collins and concludes that it doesn't really support the State's position, as Collins is premised on the principle that a defendant should not be able to avoid the possibility of incarceration by taking advantage of a subsequent change in the law that renders his crime of conviction, pursuant to a plea agreement, no longer criminal.
This is not the case here (nor in any 1170.18 case) and the argument is properly rejected.
Thursday, October 27, 2016
P v. Navarette (5th Dist) Murder Conviction in Mexico Does Not Constitute a "Strike" Under California Law
Mr. Navarette was convicted of various crimes against a female companion. The trial judge found that Navarette had a prior conviction for murder in Mexico and that this conviction constituted a "strike" and a prior "serious felony" under California law. Consistent with this finding, the trial court enhanced Navarette's sentence under PC 667(a)(1) and PC 1170.12(c)(1). Navarette appealed.
The Fifth District reverses the findings that Navarette's Mexican murder conviction constituted a "strike" and a "serious felony", and remands for resentencing.
The issue is whether murder in Mexico includes all the elements of murder in California, and if not, whether the record of conviction demonstrates that all of the elements of a California murder were found in the Mexican murder.
In Mexico, murder is the [a] illegal deprivation of the life of another; [b] due to an external cause, imputable to a man as a result of his intentional or imprudent act.
In California, murder is when a defendant [1] commits an act that causes the death of another person, and [2] when the defendant acted he acted with malice aforethought, and [3] he killed without lawful excuse or justification.
In the end it is element [3] that carries the day. In California, the absence of self-defense is an element of the crime; the State must prove it beyond a reasonable doubt. In contrast, Mexico places the burden of proving self defense upon the accused, meaning it is not an element of the offense. Hence, murder in Mexico does not include all the elements of murder in California.
The State points out that the Mexican appeals court found that Navarette failed to prove self-defense beyond a reasonable doubt. So, the State argues, even if the absence of self-defense is not an element of Mexican murder, the record here demonstrates such absence is present.
The panel responds that a reviewing court cannot resolve factual disputes at issue in the previous case. That the Mexican courts found the evidence insufficient to prove beyond a reasonable doubt that Navarette acted in self-defense is not tantamount to a finding that the evidence proved beyond a reasonable doubt that Navarette did not act in self-defense (as required in California).
The Fifth District reverses the findings that Navarette's Mexican murder conviction constituted a "strike" and a "serious felony", and remands for resentencing.
The issue is whether murder in Mexico includes all the elements of murder in California, and if not, whether the record of conviction demonstrates that all of the elements of a California murder were found in the Mexican murder.
In Mexico, murder is the [a] illegal deprivation of the life of another; [b] due to an external cause, imputable to a man as a result of his intentional or imprudent act.
In California, murder is when a defendant [1] commits an act that causes the death of another person, and [2] when the defendant acted he acted with malice aforethought, and [3] he killed without lawful excuse or justification.
In the end it is element [3] that carries the day. In California, the absence of self-defense is an element of the crime; the State must prove it beyond a reasonable doubt. In contrast, Mexico places the burden of proving self defense upon the accused, meaning it is not an element of the offense. Hence, murder in Mexico does not include all the elements of murder in California.
The State points out that the Mexican appeals court found that Navarette failed to prove self-defense beyond a reasonable doubt. So, the State argues, even if the absence of self-defense is not an element of Mexican murder, the record here demonstrates such absence is present.
The panel responds that a reviewing court cannot resolve factual disputes at issue in the previous case. That the Mexican courts found the evidence insufficient to prove beyond a reasonable doubt that Navarette acted in self-defense is not tantamount to a finding that the evidence proved beyond a reasonable doubt that Navarette did not act in self-defense (as required in California).
Wednesday, October 26, 2016
P v. Wright (2nd Dist, Div.1) SVP Commitment Reversed For Insufficient Evidence
Mr. Wright, at age 26, was convicted of lewd acts upon a 14 year-old girl. Then at age 30, Wright committed lewd acts upon two more girls, one 14 and one 15. At age 36, Wright engaged in oral copulation with a 17 year old girl.
Upon his release from prison, the State sought to declare Wright a sexually violent predator (SVP) and civilly commit him for the rest of his life. A bench trial was held.
The State's star witness was one Dr. Musacco. Musacco opined that Wright suffered from hebephilia, a controversial disorder where a person is attracted to pubescent kids, not pre-pubescent (pedophilia) and not post-pubescent (is this a disorder?). Musacco testified that the diagnoses required knowing more than the victim's age since people mature at different ages (as a former 13 year-old male I can attest to this fact). However, Musacco had no knowledge of the physical development of any of the victims. Accordingly, Musacco waffled on whether the diagnosis was justified, couching the opinion on the "assumption" that the victims were physically pubescent.
The trial court accepted this tripe and Wright appealed. The Second District reverses.
To justify an SVP commitment, the State must prove beyond a reasonable doubt that [1] Wright committed a sexually violent offense against two or more victims (check), [2] Wright has a diagnosed mental disorder, and [3] the disorder makes him likely to engage in sexually violent criminal behavior. The problem is number two. Musacco diagnoses Wright with hebephilia, but acknowledges that the diagnosis is dependent upon information Musacco didn't have, the physical characteristics of the victims.
This is too much for the panel, which while acknowledging the deference traditionally given to experts, cannot ignore the fact that Musacco had no legitimate factual basis upon which to rely. Musacco admitted that 14 year-old girls may appear pubescent or post-pubescent, and that it is impossible to know which absent some evidence of their appearance at the relevant time.
Because Musacco's opinion was supported by assumption, not fact, the verdict is reversed for insufficient evidence.
Upon his release from prison, the State sought to declare Wright a sexually violent predator (SVP) and civilly commit him for the rest of his life. A bench trial was held.
The State's star witness was one Dr. Musacco. Musacco opined that Wright suffered from hebephilia, a controversial disorder where a person is attracted to pubescent kids, not pre-pubescent (pedophilia) and not post-pubescent (is this a disorder?). Musacco testified that the diagnoses required knowing more than the victim's age since people mature at different ages (as a former 13 year-old male I can attest to this fact). However, Musacco had no knowledge of the physical development of any of the victims. Accordingly, Musacco waffled on whether the diagnosis was justified, couching the opinion on the "assumption" that the victims were physically pubescent.
The trial court accepted this tripe and Wright appealed. The Second District reverses.
To justify an SVP commitment, the State must prove beyond a reasonable doubt that [1] Wright committed a sexually violent offense against two or more victims (check), [2] Wright has a diagnosed mental disorder, and [3] the disorder makes him likely to engage in sexually violent criminal behavior. The problem is number two. Musacco diagnoses Wright with hebephilia, but acknowledges that the diagnosis is dependent upon information Musacco didn't have, the physical characteristics of the victims.
This is too much for the panel, which while acknowledging the deference traditionally given to experts, cannot ignore the fact that Musacco had no legitimate factual basis upon which to rely. Musacco admitted that 14 year-old girls may appear pubescent or post-pubescent, and that it is impossible to know which absent some evidence of their appearance at the relevant time.
Because Musacco's opinion was supported by assumption, not fact, the verdict is reversed for insufficient evidence.
P v. Lopez (2nd Dist, Div.6) A Juvenile Cannot Be Penalized For Exercising His Constitutional Rights
While a juvenile, Master Lopez committed an aggravated kidnapping. It was 1994 and life without the possibility of parole for juveniles was all the rage. Lopez was sentenced to life in prison without the possibility of parole (LWOP), plus nine years.
Subsequently, the United States Supreme Court held that giving juveniles LWOP sentences for non-homicide offenses violates the Eighth Amendment's prohibition against cruel and unusual punishment. Lopez then had the cheek to assert his Constitutional right and petitioned for a writ of habeas corpus. The trial court acknowledged the U.S. Supreme Court's holding and modified Lopez's sentence to life with the possibility of parole.
Following this sentence modification, the California legislature created Penal Code section 1170(d)(2), which allowed people who were under 18 at the time of crimes for which they were sentenced to LWOP to petition the trial court for a recall of sentence.
Lopez filed his 1170(d)(2) petition (25 years after his crime) and it was granted. Lopez was resentenced to life with parole, the execution of sentence was suspended and Lopez was placed on probation for five years. The State appealed.
The Second District affirms.
Ignoring the Jewish axiom to "loath mastery over others", the State argues the following: because Lopez had earlier asserted his Eighth Amendment right to be free from an LWOP sentence, he forfeited his PC 1170(d)(2) right to petition for recall of sentence. In other (cynical) words, because Lopez had earlier asserted his right to be free of an unconstitutional sentence and was given life with the possibility of parole, he gave up his right to a 1170(d)(2) petition.
The Second District will have nothing of this, and affirms. My only criticism is that the form of analysis could have been more disciplined. The statute at issue is temporally ambiguous, providing the gateway to a look into the legislative intent behind the law. As punishing defendants for asserting their Constitutional rights is not a recognized legislative intent, any future textual argument can thus be foreclosed.
But this is niggling. The decision is sound.
Subsequently, the United States Supreme Court held that giving juveniles LWOP sentences for non-homicide offenses violates the Eighth Amendment's prohibition against cruel and unusual punishment. Lopez then had the cheek to assert his Constitutional right and petitioned for a writ of habeas corpus. The trial court acknowledged the U.S. Supreme Court's holding and modified Lopez's sentence to life with the possibility of parole.
Following this sentence modification, the California legislature created Penal Code section 1170(d)(2), which allowed people who were under 18 at the time of crimes for which they were sentenced to LWOP to petition the trial court for a recall of sentence.
Lopez filed his 1170(d)(2) petition (25 years after his crime) and it was granted. Lopez was resentenced to life with parole, the execution of sentence was suspended and Lopez was placed on probation for five years. The State appealed.
The Second District affirms.
Ignoring the Jewish axiom to "loath mastery over others", the State argues the following: because Lopez had earlier asserted his Eighth Amendment right to be free from an LWOP sentence, he forfeited his PC 1170(d)(2) right to petition for recall of sentence. In other (cynical) words, because Lopez had earlier asserted his right to be free of an unconstitutional sentence and was given life with the possibility of parole, he gave up his right to a 1170(d)(2) petition.
The Second District will have nothing of this, and affirms. My only criticism is that the form of analysis could have been more disciplined. The statute at issue is temporally ambiguous, providing the gateway to a look into the legislative intent behind the law. As punishing defendants for asserting their Constitutional rights is not a recognized legislative intent, any future textual argument can thus be foreclosed.
But this is niggling. The decision is sound.
Monday, October 24, 2016
P v. Cady (4th Dist, Div.1) Driving Under the Influence of Alcohol is a Lesser Included of Driving Under the Combined Influence of Alcohol & Drugs
Mr. Cady got loaded and decided to drive a car. He ended up killing and injuring numerous persons. Among the crimes for which Cady was convicted were one count each of driving under the influence of alcohol, causing injury, Vehicle Code section 23153(a), and driving under the combined influence of alcohol and drugs, Vehicle Code section 23153(f). Cady appealed.
The Fourth District reverses the 23153(a) conviction, finding that 23153(a) is a lesser included offense of 23153(f).
This opinion succeeds where the panel in In Re Jonathan R. fails. The panel here actually engages in a thoughtful application of the elements test. Its finding that all the elements of driving under the influence of alcohol are contained within the elements of driving under the combined influence of alcohol and drugs is hardly surprising. The State tries to split hairs and argues that a person can actually be under the influence of alcohol and drugs without being under the influence of alcohol if the influence is the synergistic product of the consumption of alcohol with drugs, when the amount of alcohol consumed is insufficient on its own.
The panel disagrees.
The Fourth District reverses the 23153(a) conviction, finding that 23153(a) is a lesser included offense of 23153(f).
This opinion succeeds where the panel in In Re Jonathan R. fails. The panel here actually engages in a thoughtful application of the elements test. Its finding that all the elements of driving under the influence of alcohol are contained within the elements of driving under the combined influence of alcohol and drugs is hardly surprising. The State tries to split hairs and argues that a person can actually be under the influence of alcohol and drugs without being under the influence of alcohol if the influence is the synergistic product of the consumption of alcohol with drugs, when the amount of alcohol consumed is insufficient on its own.
The panel disagrees.
P v., Reyes-Tornero (5th Dist.) The "Relevant Act" for Purposes of PC 654 Analysis Is the Crime not the Enhancement.
This case involves a weekly neighborhood card game. Four gentlemen were playing cards outside when Mr. Reyes-Tornero (Reyes) approached with a pistol. Reyes pointed the gun at each of the four men and demanded they hand over their wallets. One of the men refused to hand over his wallet and Reyes shot him in the face. Thankfully the man survived (and actually continued to pummel Reyes).
Among other crimes, Reyes was convicted of felony assault as to all four card players. Found true as to all four assaults was an enhancement that Reyes inflicted great bodily injury (GBI) during the commission of each assault. Reyes was sentenced accordingly. He appealed, arguing that the GBI enhancement could only be imposed once because he only inflicted GBI upon one of the victims, despite the jury finding the GBI was inflicted during each of the four assaults.
The issue in this case is Penal Code section 654. Section 654 prohibits multiple punishments for the same "act or or omission". Section 654 is important because, due to the expansive Penal Code, it is nearly impossible to do something illegal without violating multiple laws. For example, a convicted felon driving a car with an unregistered, loaded, pistol in the glove box violates numerous laws (felon in possession, possession of a concealed firearm, etc.). The felon can be convicted of multiple offenses for his "act" of driving with the gun, but under 654, he cannot be punished for more than one of the crimes.
Here the issue is not multiple crimes, but multiple enhancements. Reyes assaulted four men, but injured only one. The crimes constitute four separate acts; Reyes assault each victim. However all four enhancements derive from the same act, the shooting of one of the men. If, under 654, the relevant "act" that cannot be punished more than once is the enhancement, the shooting, then Reyes cannot be punished for the remaining three enhancements. But if the relevant act is the crime to which the enhancement attaches, 654 provides no impediment to multiple punishments, since Reyes did commit four acts of assault.
Relying on a California Supreme Court decision (P v. Oates), the panel determines that the relevant act is the crime and affirms the multiple punishments. In a concurrence, Justice Poochigan acknowledges that the rule in Oates compels the result, but writes, quite thoughtfully, that the California Supreme Court may wish to reexamine the Oates rule in the context of multiple GBI enhancements where there is only one injury.
Here the issue is not multiple crimes, but multiple enhancements. Reyes assaulted four men, but injured only one. The crimes constitute four separate acts; Reyes assault each victim. However all four enhancements derive from the same act, the shooting of one of the men. If, under 654, the relevant "act" that cannot be punished more than once is the enhancement, the shooting, then Reyes cannot be punished for the remaining three enhancements. But if the relevant act is the crime to which the enhancement attaches, 654 provides no impediment to multiple punishments, since Reyes did commit four acts of assault.
Relying on a California Supreme Court decision (P v. Oates), the panel determines that the relevant act is the crime and affirms the multiple punishments. In a concurrence, Justice Poochigan acknowledges that the rule in Oates compels the result, but writes, quite thoughtfully, that the California Supreme Court may wish to reexamine the Oates rule in the context of multiple GBI enhancements where there is only one injury.
Tuesday, October 18, 2016
P v. Sweeney (4th Dist, Div.2) An Otherwise Prop47 Eligible Offense Does Not Become Ineligible By Way Of a PC 186.22(b) Admission
In 2003, among other crimes, Mr. Sweeney was convicted of two felony counts of receiving stolen property, PC 496(a). Each count of 496(a) was enhanced by an admission pursuant to PC 186.22(b), an enhancement application to felony offenses.
Fast forward to 2015 and Sweeney files a PC 1170.18 petition to reduce his two 496(a) felonies to misdemeanors claiming that had Sweeney committed the 496(a) offenses after November 4, 2014, they would be misdemeanors. The trial court found Sweeney ineligible for 1170.18 relief on the ground that had Sweeney committed the 496(a) offenses after the passage of Proposition 47, the misdemeanor gang enhancement in PC 186.22(d), would have elevated the 496(a) offenses to felonies (until and unless the trial court declared these wobblers misdemeanors). Sweeney appealed.
The Fourth District reverses.
As in all 1170.18 petitions, the issue is whether the crime at issue would have necessarily have been a misdemeanor if committed after the November 4, 2014, passage of Proposition 47. If the property at issue in the 496(a) offenses was worth 950 dollars or less, the 496(a) would have been a misdemeanor offense after November 4, 2014. As the felony gang enhancement, PC 186.22(b) would not have been applicable, Sweeney argues the crime would have necessarily been a misdemeanor.
The State replies that while the 186.22(b) felony gang enhancement would not have been applicable, the 186.22(d) misdemeanor gang enhancement would have been applicable and would have elevated the misdemeanor 496(a) counts to wobblers (felonies until and unless the trial court later decided to reduce them to misdemeanors).
The panel concludes that PC 186.22(d) and 186.22(b) are mutually exclusive and because 186.22(d) was never alleged, Sweeney's 496(a) convictions would have necessarily been misdemeanors if the property at issue was 950 dollars or less. They remand the case for Sweeney to refile his petition and prove the property at issue was worth 950 dollars or less.
Fast forward to 2015 and Sweeney files a PC 1170.18 petition to reduce his two 496(a) felonies to misdemeanors claiming that had Sweeney committed the 496(a) offenses after November 4, 2014, they would be misdemeanors. The trial court found Sweeney ineligible for 1170.18 relief on the ground that had Sweeney committed the 496(a) offenses after the passage of Proposition 47, the misdemeanor gang enhancement in PC 186.22(d), would have elevated the 496(a) offenses to felonies (until and unless the trial court declared these wobblers misdemeanors). Sweeney appealed.
The Fourth District reverses.
As in all 1170.18 petitions, the issue is whether the crime at issue would have necessarily have been a misdemeanor if committed after the November 4, 2014, passage of Proposition 47. If the property at issue in the 496(a) offenses was worth 950 dollars or less, the 496(a) would have been a misdemeanor offense after November 4, 2014. As the felony gang enhancement, PC 186.22(b) would not have been applicable, Sweeney argues the crime would have necessarily been a misdemeanor.
The State replies that while the 186.22(b) felony gang enhancement would not have been applicable, the 186.22(d) misdemeanor gang enhancement would have been applicable and would have elevated the misdemeanor 496(a) counts to wobblers (felonies until and unless the trial court later decided to reduce them to misdemeanors).
The panel concludes that PC 186.22(d) and 186.22(b) are mutually exclusive and because 186.22(d) was never alleged, Sweeney's 496(a) convictions would have necessarily been misdemeanors if the property at issue was 950 dollars or less. They remand the case for Sweeney to refile his petition and prove the property at issue was worth 950 dollars or less.
Tuesday, October 11, 2016
In re Jonathan R. (1st Dist, Div.1) PC 245(a)(1) Is a Necessarily Included Offense of PC 245(a)(4).
Master Jonathan used a knife to stab another kid during a fight. A juvenile court found true that Jonathan had committed PC 245(a)(1), assault with a deadly weapon (ADW) and PC 245(a)(4), assault by means of force likely to cause great bodily injury. Jonathan appealed and argued that 245(a)(1) and 245(a)(4) are not separate crimes, rather they are just descriptions of different ways to commit the crime of aggravated assault.
The First District reverses and vacates the 245(a)(4) conviction. But not for the reason argued, rather because the panel finds that 245(a)(1) is necessarily included within 245(a)(4).
I do not believe this opinion will hold up for two reasons. First, the legal reasoning is faulty. Second, because California's Penal Code and Welfare and Institutions Code treat the two offenses differently for purposes of the "strike" laws and DJF eligibility, the holding is unworkable in practice.
The opinion is sloppy due its failure to apply the legal rule it purports to use in examining the issue. The California Supreme Court has traditionally used the "elements test" to determine when an offense is necessarily included within the other. If all the elements of offense A are always included in offense B, A is a necessarily included offense of B. Here the panel gives lip (pen?) service to the test, but never gets around to applying it.
Maybe the reason they eschew a facial application of the test is because doing so would block the panel from reaching its desired result. To wit, use of force is not an element of assault with a deadly weapon. The elements of ADW, PC 245(a)(1) are as follows.
[1] Defendant did an act,
[2] with a deadly weapon,
[3] that by its nature would directly and probably result in the application of force to a person.
Compare to the elements of PC 245(a)(4)
[1] Defendant did an act,
[2] That by its nature would directly and probably result in the application of force to a person,
[3] The force used was likely to produce great bodily injury.
The panel tries to convince us that any act with a deadly weapon likely to result in the application of force necessarily requires the use of force likely to produce great bodily injury. However, prior appellate decisions make this task difficult.
For years appellate courts have rejected challenges to ADW convictions based upon the argument that the defendant used no physical force on the basis that force is not an element of ADW. Merely holding a sharp pencil to the neck of another person, without use of any force, is an assault with a deadly weapon. P. Page, 123 Cal. App. 4th 1472. Holding a pellet gun at a policeman, without pulling the trigger, is an assault with a deadly weapon, In re D.T. 237 Cal. App. 4th 693. The crime of assault with a deadly weapon can be committed by the threatened use of force; the use of force is unnecessary. P v. McCoy 25 Cal. 2d 177.
IMEO, the panel's error is equating the theoretical application of force to the victim, which need not occur, with the actual use of force by the defendant, which must occur. ADW does not require the defendant himself use force likely to cause GBI, only that he do something with a weapon that will likely result in the theoretical application of force to the victim. PC 245(a)(4), however, requires the defendant to actually use physical force (though it need not be transmitted to the victim). By equating the theoretical "likely" force upon the victim which needn't occur, with the actual force generated by the defendant which must occur, the panel goes astray.
The First District reverses and vacates the 245(a)(4) conviction. But not for the reason argued, rather because the panel finds that 245(a)(1) is necessarily included within 245(a)(4).
I do not believe this opinion will hold up for two reasons. First, the legal reasoning is faulty. Second, because California's Penal Code and Welfare and Institutions Code treat the two offenses differently for purposes of the "strike" laws and DJF eligibility, the holding is unworkable in practice.
The opinion is sloppy due its failure to apply the legal rule it purports to use in examining the issue. The California Supreme Court has traditionally used the "elements test" to determine when an offense is necessarily included within the other. If all the elements of offense A are always included in offense B, A is a necessarily included offense of B. Here the panel gives lip (pen?) service to the test, but never gets around to applying it.
Maybe the reason they eschew a facial application of the test is because doing so would block the panel from reaching its desired result. To wit, use of force is not an element of assault with a deadly weapon. The elements of ADW, PC 245(a)(1) are as follows.
[1] Defendant did an act,
[2] with a deadly weapon,
[3] that by its nature would directly and probably result in the application of force to a person.
Compare to the elements of PC 245(a)(4)
[1] Defendant did an act,
[2] That by its nature would directly and probably result in the application of force to a person,
[3] The force used was likely to produce great bodily injury.
The panel tries to convince us that any act with a deadly weapon likely to result in the application of force necessarily requires the use of force likely to produce great bodily injury. However, prior appellate decisions make this task difficult.
For years appellate courts have rejected challenges to ADW convictions based upon the argument that the defendant used no physical force on the basis that force is not an element of ADW. Merely holding a sharp pencil to the neck of another person, without use of any force, is an assault with a deadly weapon. P. Page, 123 Cal. App. 4th 1472. Holding a pellet gun at a policeman, without pulling the trigger, is an assault with a deadly weapon, In re D.T. 237 Cal. App. 4th 693. The crime of assault with a deadly weapon can be committed by the threatened use of force; the use of force is unnecessary. P v. McCoy 25 Cal. 2d 177.
IMEO, the panel's error is equating the theoretical application of force to the victim, which need not occur, with the actual use of force by the defendant, which must occur. ADW does not require the defendant himself use force likely to cause GBI, only that he do something with a weapon that will likely result in the theoretical application of force to the victim. PC 245(a)(4), however, requires the defendant to actually use physical force (though it need not be transmitted to the victim). By equating the theoretical "likely" force upon the victim which needn't occur, with the actual force generated by the defendant which must occur, the panel goes astray.
Wednesday, October 5, 2016
P v. Pak (2nd Dist, Div.4) For a Burglary Premised on Pawning Stolen Property, Eligibility for PC 1170.18 Relief Depends Upon the Value Received
In 2011, Ms. Pak went to a pawn shop to pawn some stolen property, a camcorder, a watch, and some earrings. The pawn shop took the loot and gave Pak a sum of money. For this, the State charged Pak with, and she pleaded to, felony second degree burglary.
Fast forward to 2015, Pak files a PC 1170.18 petition to reduce her conviction to misdemeanor shoplifting. She claims the pawn shop gave her less than 950 dollars for the loot. The State responds, and Pak agrees, that the fair market value of the loot was over 5K. Thus you can see the issue develop. "Shoplifting" requires the following.
The trial court found it was [b]. Reasoning that Pak intended to get more than 950 dollars for loot worth 5K, it denied the petition. In doing so, the trial court presciently observed the issue was a good one for an appeal. An appeal followed.
The Second District disagrees with the trial court, instead finding the "property" at issue here refers to [c] the amount of money Pak received for the loot. The panel does affirm the denial though, albeit kindly without prejudice, as Pak did not present any evidence of what amount she received.
The opinion is a tight, textual analysis. "[V]alue of the property taken or intended to be taken" is a disjunctive phrase containing the past participle of "to take". As Pak already had possession of the loot when she entered the pawn shop, it makes little sense to say the property she intended to take was said loot. What she intended to "take" from the pawn shop was cash. Here, the disjunctive language becomes important. The panel interprets the phrase to be binary. If the burglar intends to get more than 950 bucks for the loot, but never completes the transaction, the operative "amount" is greater than 950 dollars and her crime is not a shoplift. But where, as here, the burglar actually pawns the loot and "takes" away from the transaction a sum of money, it is that sum that controls, and if less than 950 dollars, the crime is a misdemeanor shoplift. Here, by completing the transaction, Pak's intent ceased to be the relevant consideration, replaced by the sum actually received.
Unfortunately (but not fatal) for Pak was that she did not present any evidence at the hearing that she received less than 950 dollars. Her attorney represented to the court that the DA had shown him the receipts and they totaled less than 950 dollars, a statement the DA did not contest. But the panel finds such representations will not suffice. So it affirms the denial, but gives Pak another chance to go back to the trial court and this time show the court proof of the amount she received.
Fast forward to 2015, Pak files a PC 1170.18 petition to reduce her conviction to misdemeanor shoplifting. She claims the pawn shop gave her less than 950 dollars for the loot. The State responds, and Pak agrees, that the fair market value of the loot was over 5K. Thus you can see the issue develop. "Shoplifting" requires the following.
the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950) PC 459.5So does "property" in Pak's case refer to [a] the loot she carried into the pawn shop, [b] the amount of money she "intended" to get from the pawn broker for the loot, or [c] the amount of money Pak actually received from the pawn broker?
The trial court found it was [b]. Reasoning that Pak intended to get more than 950 dollars for loot worth 5K, it denied the petition. In doing so, the trial court presciently observed the issue was a good one for an appeal. An appeal followed.
The Second District disagrees with the trial court, instead finding the "property" at issue here refers to [c] the amount of money Pak received for the loot. The panel does affirm the denial though, albeit kindly without prejudice, as Pak did not present any evidence of what amount she received.
The opinion is a tight, textual analysis. "[V]alue of the property taken or intended to be taken" is a disjunctive phrase containing the past participle of "to take". As Pak already had possession of the loot when she entered the pawn shop, it makes little sense to say the property she intended to take was said loot. What she intended to "take" from the pawn shop was cash. Here, the disjunctive language becomes important. The panel interprets the phrase to be binary. If the burglar intends to get more than 950 bucks for the loot, but never completes the transaction, the operative "amount" is greater than 950 dollars and her crime is not a shoplift. But where, as here, the burglar actually pawns the loot and "takes" away from the transaction a sum of money, it is that sum that controls, and if less than 950 dollars, the crime is a misdemeanor shoplift. Here, by completing the transaction, Pak's intent ceased to be the relevant consideration, replaced by the sum actually received.
Unfortunately (but not fatal) for Pak was that she did not present any evidence at the hearing that she received less than 950 dollars. Her attorney represented to the court that the DA had shown him the receipts and they totaled less than 950 dollars, a statement the DA did not contest. But the panel finds such representations will not suffice. So it affirms the denial, but gives Pak another chance to go back to the trial court and this time show the court proof of the amount she received.
Sunday, October 2, 2016
P v. Davis (3rd Dist) Diverting Uncaptured Water Flowing Underground Is Not Theft.
Before we look at the facts of this case, I must say that Davis' appellate attorney and the Third District panel (and its clerks) deserve an A+ for their work on this case. While it involves a mere misdemeanor, the depth of judicial analysis and client advocacy here are impressive.
Davis owned some land upon which existed a marijuana field. The marijuana was being grown in accordance with our state's medical marijuana laws, but there was an issue with how the plants were being watered. Land adjacent to Davis' was owned by a railroad. Underground of the railroad's land flowed water. This underground stream was being diverted to Davis' land to water the marijuana.
For this subterranean riparian diversion, Davis was convicted of petty theft of the State's water, PC 488. Davis appealed.
The Third District Reverses.
The threshold issue here is whether the water at issue was "personal property" as only personal property may be the subject of larceny. After an impressive review of the historical underpinnings of the common law of property, the panel concludes that the water at issue was not personal property of the State. Before water is legally captured and contained it belongs to no one (or everyone), despite the State's authority to regulate people's behavior relative to said water. Naturally flowing water does not, prior to legal capture and containment, have an owner.
The State's subsequent argument is that the water at issue comprised a real property interest and that in diverting the water, Davis stole a real property interest from the railroad via PC 495.
Another very interesting history-based review of real property law follows with the panel finding that while crops, minerals, and oil constitute real property interests whose removal constitutes theft of a real property interest under 495, water does not.
The law geek inside me is sad that I do not have sufficient time to spend analyzing this opinion as it brought back memories of my 1L year in law school reading about captured fox and other seemingly anachronistic events provided to illustrate the reasoning behind the common law of property. That said, I am left with much admiration for Davis' appellate lawyer and the Third District panel for their work product on this case.
Davis owned some land upon which existed a marijuana field. The marijuana was being grown in accordance with our state's medical marijuana laws, but there was an issue with how the plants were being watered. Land adjacent to Davis' was owned by a railroad. Underground of the railroad's land flowed water. This underground stream was being diverted to Davis' land to water the marijuana.
For this subterranean riparian diversion, Davis was convicted of petty theft of the State's water, PC 488. Davis appealed.
The Third District Reverses.
The threshold issue here is whether the water at issue was "personal property" as only personal property may be the subject of larceny. After an impressive review of the historical underpinnings of the common law of property, the panel concludes that the water at issue was not personal property of the State. Before water is legally captured and contained it belongs to no one (or everyone), despite the State's authority to regulate people's behavior relative to said water. Naturally flowing water does not, prior to legal capture and containment, have an owner.
The State's subsequent argument is that the water at issue comprised a real property interest and that in diverting the water, Davis stole a real property interest from the railroad via PC 495.
Another very interesting history-based review of real property law follows with the panel finding that while crops, minerals, and oil constitute real property interests whose removal constitutes theft of a real property interest under 495, water does not.
The law geek inside me is sad that I do not have sufficient time to spend analyzing this opinion as it brought back memories of my 1L year in law school reading about captured fox and other seemingly anachronistic events provided to illustrate the reasoning behind the common law of property. That said, I am left with much admiration for Davis' appellate lawyer and the Third District panel for their work product on this case.
P v. Blackwell (1st Dist, Div.5) & P v. Bell (2nd Dist, Div.8): Elected California Judiciary Says "No Thanks" to U.S. Supreme Court's Guidance on Juvenile Sentencing
In years recent, the United States Supreme Court has issued opinions holding specific criminal punishments constitute cruel and unusual punishment when applied to children. In Roper v. Simmons, the Supreme Court held it unconstitutional to execute someone for a crime they committed as a child. Following Simmons, the Supreme Court, in Miller v. Alabama, declared mandatory "life without parole" (LWOP) sentences unconstitutional when applied to juvenile offenders. Finally in Montgomery v. Louisiana, the Supreme Court held that Miller to apply retroactively to juvenile offenders previously sentenced under mandatory LWOP schemes.
Importantly, Miller did not hold that all LWOP sentences for juveniles were unconstitutional, only that mandatory LWOP sentencing schemes were unconstitutional. Miller required that before an LWOP sentence could be imposed upon a child offender, the sentencing court must consider the child's age, background and chances at rehabilitation.
IMEO, Miller and Montgomery are unlikely to have much effect in courts with elected judges. Rather than affecting any real change, these decisions simply impose upon such courts a requirement that before they impose LWOP sentences on juveniles, they recite some standard language about how they considered certain facts before arriving at a determination that LWOP was the proper sentence. Despite Justice Anthony Kennedy's warning that LWOP sentences for juveniles should be a rare occurrence, the reality will likely prove otherwise.
Here Blackwell was sentenced to LWOP for a crime he commited when he was 17. Due to Montgomery, Blackwell now returns to the trial court for reconsideration. The trial court, after reciting the necessary language, again imposes LWOP and the First District affirms.
Bell was sentenced to 43 years to life for crimes he committed when he was 14. He argues that such a sentence is cruel and unusual and the functional equivalent of LWOP. The Second District affirms, finding a shot at parole when Bell turns 57 is not the same as LWOP and is neither cruel nor unusual.
Despite Justice Kennedy's admonition, I am willing to bet that California's elected judiciary will find that "rare" means "more than 70 percent".
Importantly, Miller did not hold that all LWOP sentences for juveniles were unconstitutional, only that mandatory LWOP sentencing schemes were unconstitutional. Miller required that before an LWOP sentence could be imposed upon a child offender, the sentencing court must consider the child's age, background and chances at rehabilitation.
IMEO, Miller and Montgomery are unlikely to have much effect in courts with elected judges. Rather than affecting any real change, these decisions simply impose upon such courts a requirement that before they impose LWOP sentences on juveniles, they recite some standard language about how they considered certain facts before arriving at a determination that LWOP was the proper sentence. Despite Justice Anthony Kennedy's warning that LWOP sentences for juveniles should be a rare occurrence, the reality will likely prove otherwise.
Here Blackwell was sentenced to LWOP for a crime he commited when he was 17. Due to Montgomery, Blackwell now returns to the trial court for reconsideration. The trial court, after reciting the necessary language, again imposes LWOP and the First District affirms.
Bell was sentenced to 43 years to life for crimes he committed when he was 14. He argues that such a sentence is cruel and unusual and the functional equivalent of LWOP. The Second District affirms, finding a shot at parole when Bell turns 57 is not the same as LWOP and is neither cruel nor unusual.
Despite Justice Kennedy's admonition, I am willing to bet that California's elected judiciary will find that "rare" means "more than 70 percent".
Saturday, October 1, 2016
P v. Hallam (2nd Dist, Div.1) Computer Store's Employee Bathroom Is a "Commercial Establishment" Under PC 459.5
In 2011, Mr. Hallam walked into a computer store. With permission, he used the employee bathroom. Hallam then walked out the back door of the store only to climb back in through the same bathroom's open window, whereupon he stole a 350 dollar air compressor.
For this he was convicted of felony second-degree burglary and sentenced to two years in the State's crowbar motel. In 2015, Hallam filed a petition pursuant to PC 1170.18 to reduce his felony burglary to a misdemeanor shoplift. Under the following reasoning, the trial court denied Hallam's petition.
The Second District reverses.
The issue is one of statutory interpretation, namely Penal Code section 459.5.
But alas there is the "additional burglary" theory espoused in People v. Garcia, 62 Cal. 4th 1116. In Garcia, the California Supreme Court stated that entrance into a room within a larger structure may constitute a separate burglary if there is a "separate and objectionably reasonable expectation of protection from intrusion relative to the larger structure". Such an expectation may be evinced by the smaller room or area being owned, leased, or occupied by a distinct entity or by the area being locked (such as the storage area in P v. Stylz)
Since the employee bathroom in this computer store was obviously open to customers (Hallam had permission), there was no such expectation of protection.
As a consequence, Hallam gets his misdemeanor.
For this he was convicted of felony second-degree burglary and sentenced to two years in the State's crowbar motel. In 2015, Hallam filed a petition pursuant to PC 1170.18 to reduce his felony burglary to a misdemeanor shoplift. Under the following reasoning, the trial court denied Hallam's petition.
[T]he statute [459.5] “anticipates” entry into an area of a commercial establishment to which the public has access and where merchandise is sold. Because [Hallam] did not enter the store through the front door and he took an item from the employee area . . . [his] offense did not meet the criteria for shoplifting under section 459.5.Hallam appealed.
The Second District reverses.
The issue is one of statutory interpretation, namely Penal Code section 459.5.
(1) entry into a commercial establishment, (2) while the establishment is open during regular business hours, and (3) with intent to commit larceny of property valued at $950 or less.Clearly the computer store was a commercial establishment. The time was around eleven in the morning and there was no dispute the computer store was open for business. Hallam intended to make off with the air compressor, which was worth 350 dollars. Textually there is no reason Hallam's crime is not a misdemeanor shoplift.
But alas there is the "additional burglary" theory espoused in People v. Garcia, 62 Cal. 4th 1116. In Garcia, the California Supreme Court stated that entrance into a room within a larger structure may constitute a separate burglary if there is a "separate and objectionably reasonable expectation of protection from intrusion relative to the larger structure". Such an expectation may be evinced by the smaller room or area being owned, leased, or occupied by a distinct entity or by the area being locked (such as the storage area in P v. Stylz)
Since the employee bathroom in this computer store was obviously open to customers (Hallam had permission), there was no such expectation of protection.
As a consequence, Hallam gets his misdemeanor.
In re Gabriel T. (5th Dist) 30 Day "Flash Incarceration" Provision For Juvenile Is Unlawful.
Master Gabriel was adjudicated a delinquent ward of the juvenile court. He was ordered to complete a 12 month "Correctional Academy" program. The program was to consist of a 6 month stint where he would be confined within the program's facility followed by 6 months of "aftercare" where he would live with his family under the supervision and rules of the program. The juvenile court imposed an additional term authorizing the probation office to reconfine Gabriel to the program's facility for 30 days should it find Gabriel had violated the rules of his aftercare. Gabriel appealed.
The Fifth District reverses.
Under California law, removing a kid from his home requires compliance with the strict requirements contained within the Welfare & Institutions Code. It requires the probation office file a petition and that the kid be brought before the court within 48 hours of his removal and given an opportunity to dispute the need for his removal.
As this court's order allowed the probation office to remove Gabriel from his home for 30 days without the concomitant requirements of notice and the opportunity to be heard, it is unlawful.
The Fifth District reverses.
Under California law, removing a kid from his home requires compliance with the strict requirements contained within the Welfare & Institutions Code. It requires the probation office file a petition and that the kid be brought before the court within 48 hours of his removal and given an opportunity to dispute the need for his removal.
As this court's order allowed the probation office to remove Gabriel from his home for 30 days without the concomitant requirements of notice and the opportunity to be heard, it is unlawful.
Penal Code Section 1170.18 Amended to Extend Proposition 47 Petition Deadline to 2022.
In November 2014, California voters enacted Proposition 47, an initiative that reduced certain felony offenses to misdemeanors and provided a process whereby people previously convicted of such felonies could return to court and petition to have their felony convictions reduced to misdemeanors, provided they did so within three years (making November 4, 2017, the cutoff).
Due to the passage of AB2765 on September 28, 2016, the cutoff is now extended until November 4, 2022.
Due to the passage of AB2765 on September 28, 2016, the cutoff is now extended until November 4, 2022.
P v. Stamps (1st Dist, Div.4) Expert Testimony Identifying Pills as Narcotics Based Upon a Web Site Was Inadmissible Hearsay
In 2012, the police searched Ms. Stamps' car and found the following: [1] a crystal solid suspected to be methamphetamine, [2] a powder suspected to be cocaine, [3] two yellow pills with "V" on one side and "Watson" on the other, [4] six white pills with "Watson" on one side and "853" on the other, [5] one yellow pill with "853", and [6] one white pill with "Watson 953".
Stamps was charged with possession of methamphetamine, possession of cocaine, possession of oxycodone, and possession of dihydrocodeinone. The star witness at trial was a state criminalist. She testified she chemically analyzed the crystals and powder with results confirming the crystals contained methamphetamine and the powder contained cocaine. So far, so good. Then she testified that to identify the chemical content of the pills, she went to a website called "Ident-a-drug" and visually compared the pictures of pills on the website with the pills found in Stamps' car. Because Stamps' pills looked like the oxycodone and dihydrocodeinone pills on the website, she testified Stamps' pills contained oxycodone and dihydrocodeinone. The jury convicted Stamps on all charges and she appealed.
The First District reverses the oxycodone and dihydrocodeinone, but finds that a retrial would not violate the Constitutional proscription against double jeopardy.
The portion of the opinion reversing the pill convictions contains a solid analysis. The double jeopardy portion has a problem (as we'll see).
The criminalist's pill testimony gives rise to numerous legal issues, including hearsay, the Kelly/Frye foundational issue of whether visual id via website is a generally accepted method of determining the chemical composition of a pill, and when information displayed by a computer is testimonial. Admirably the panel limits its analysis to the hearsay issue and leaves the remaining issues for another day.
The panel finds the hearsay issue is controlled by the California Supreme Court's recent decision in P v. Sanchez. Prior to Sanchez, when an expert witness testified about out-of-court statements upon which she relied in forming her opinions, those statements were deemed "non hearsay" because they were not being offered for their truth, only to explain the expert's opinion. Such testimony would often occur when a police officer provided expert testimony that a defendant was a gang member. It would go something like this.
Sanchez changed that and you can probably see why. Such testimony is irrelevant if not true. Unless you first assert, "Smith actually did these things", the police officer's expert opinion makes no sense. It perhaps only makes sense to lawyers (a sure warning sign) to say, "these events may or may not have happened and you're not to consider whether they did because the only evidence of these events is not offered for the truth, but you may find Smith guilty of a gang crime based on the officer's opinion despite such opinion being entirely dependent upon the truth of the events, of which there has been no evidence introduced".
Wisely, the California Supreme Court decided that this theory was excerebrose and held that such case-specific testimony is really being offered for its truth and therefore is subject to the evidential rules concerning hearsay.
With this background, the panel in our case determines that the information from the "Ident-a-drug" website was hearsay. And as there was no applicable exception to the general rule that hearsay is inadmissible, it was error to allow the criminalist to testify to the composition of Stamps' pills based upon the website information. The panel then finds that the record, stripped of the inadmissible website evidence, contains insufficient evidence to support a conviction. So it reverses Stamps' pill convictions.
Now the bad. Following the reversal the question arises of whether it would violate the prohibition against double jeopardy to give the State another crack (pun intended) at convicting Stamps. The rule is found in the U.S,. Supreme Court opinion in Lockhart v. Nelson. If the total evidence admitted at trial, admissible and inadmissible, is sufficient to support the verdict, retrial is permitted.
Here, the panel's reasoning in part 3 of section A, appears irreconcilable with its conclusion in section B. In section A, it states:
Except a finding of truth beyond a reasonable doubt. Yes, after writing the above, the panel remands for a retrial, concluding,
Stamps was charged with possession of methamphetamine, possession of cocaine, possession of oxycodone, and possession of dihydrocodeinone. The star witness at trial was a state criminalist. She testified she chemically analyzed the crystals and powder with results confirming the crystals contained methamphetamine and the powder contained cocaine. So far, so good. Then she testified that to identify the chemical content of the pills, she went to a website called "Ident-a-drug" and visually compared the pictures of pills on the website with the pills found in Stamps' car. Because Stamps' pills looked like the oxycodone and dihydrocodeinone pills on the website, she testified Stamps' pills contained oxycodone and dihydrocodeinone. The jury convicted Stamps on all charges and she appealed.
The First District reverses the oxycodone and dihydrocodeinone, but finds that a retrial would not violate the Constitutional proscription against double jeopardy.
The portion of the opinion reversing the pill convictions contains a solid analysis. The double jeopardy portion has a problem (as we'll see).
The criminalist's pill testimony gives rise to numerous legal issues, including hearsay, the Kelly/Frye foundational issue of whether visual id via website is a generally accepted method of determining the chemical composition of a pill, and when information displayed by a computer is testimonial. Admirably the panel limits its analysis to the hearsay issue and leaves the remaining issues for another day.
The panel finds the hearsay issue is controlled by the California Supreme Court's recent decision in P v. Sanchez. Prior to Sanchez, when an expert witness testified about out-of-court statements upon which she relied in forming her opinions, those statements were deemed "non hearsay" because they were not being offered for their truth, only to explain the expert's opinion. Such testimony would often occur when a police officer provided expert testimony that a defendant was a gang member. It would go something like this.
Q: Officer do you have an opinion on whether Mr. Smith is a member of the Aryan Brotherhood?Often, the testifying police officer had no personal knowledge of the facts to which she testified. She was not present at the prison riot, the bar fight, or the traffic stop. She may not even have personally observed Smith's tattoos. Often, her testimony was merely the recitation of events about which she had read in police reports and other government documents. Prior to Sanchez, such statements were nevertheless admissible under the legal theory that they were not being offered for their truth (whether Smith actually rioted, was arrested with other Brotherhood members, had gang tattoos, etc.) but only to explain the police officer's opinion.
A: Yes.
Q: Upon what facts do you base your opinion?
A: In 1994, Mr. Smith was involved in a prison riot started by the Aryan Brotherhood. In 1996, he was arrested for driving without a license and there were four other members of the Aryan Brotherhood riding in his car. In 2000, he was arrested for a bar fight between the Aryan Brotherhood and the Hell's Angels. Also, I'm told he has numerous tattoos on his body associated with the Brotherhood.
Q: So based upon Mr. Smith rioting with the Aryan Brotherhood, fighting on behalf of the Brotherhood against their rival the Hell's Angels, having Aryan Brotherhood tattoos, and traveling with other Brotherhood members, what is your opinion as to whether Mr. Smith is a member of the Aryan Brotherhood?
A: He is a member.
Sanchez changed that and you can probably see why. Such testimony is irrelevant if not true. Unless you first assert, "Smith actually did these things", the police officer's expert opinion makes no sense. It perhaps only makes sense to lawyers (a sure warning sign) to say, "these events may or may not have happened and you're not to consider whether they did because the only evidence of these events is not offered for the truth, but you may find Smith guilty of a gang crime based on the officer's opinion despite such opinion being entirely dependent upon the truth of the events, of which there has been no evidence introduced".
Wisely, the California Supreme Court decided that this theory was excerebrose and held that such case-specific testimony is really being offered for its truth and therefore is subject to the evidential rules concerning hearsay.
With this background, the panel in our case determines that the information from the "Ident-a-drug" website was hearsay. And as there was no applicable exception to the general rule that hearsay is inadmissible, it was error to allow the criminalist to testify to the composition of Stamps' pills based upon the website information. The panel then finds that the record, stripped of the inadmissible website evidence, contains insufficient evidence to support a conviction. So it reverses Stamps' pill convictions.
Now the bad. Following the reversal the question arises of whether it would violate the prohibition against double jeopardy to give the State another crack (pun intended) at convicting Stamps. The rule is found in the U.S,. Supreme Court opinion in Lockhart v. Nelson. If the total evidence admitted at trial, admissible and inadmissible, is sufficient to support the verdict, retrial is permitted.
Here, the panel's reasoning in part 3 of section A, appears irreconcilable with its conclusion in section B. In section A, it states:
[T]he Ident-A-Drug testimony was the only evidence that the pills actually contained the controlled substances (italics added)
Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation.”(citation omitted).
Moreover, “hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules . . . .” (citation omitted).So, according to the panel, the sole evidence that the pills were illegal was a website. Also according to the panel, websites are not inherently accurate nor subject to independent verification, making them adequate for almost anything.
Except a finding of truth beyond a reasonable doubt. Yes, after writing the above, the panel remands for a retrial, concluding,
Acceptance by the jurors of the veracity of the Ident-ADrug results was not so misguided as to render the guilty verdicts among those that no “rational fact finder” could render.Does this mean this panel would also conclude that a "rational factfinder" could return a guilty verdict against Hillary Clinton for the murder of Vince Foster if a police officer took the stand and testified that she read from numerous websites that Clinton's fingerprints and DNA were found on the gun that killed Foster?
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