Mr. Lopez was pulled over for failing to signal. He was found to have a stash of methamphetamine, a decent-sized wad of cash, a scale, and a cache of small plastic baggies. Lopez admitted to the cops he was selling. "I sell meth because I am living on the street, and I have to make money."
A jury convicted Lopez of possession for sale, HS 11378, and transportation, HS 11379. Lopez admitted having two prior convictions for transportation. He was given a total of fifteen years in prison. Six of the fifteen years came from two three-year enhancements under 11370.2 which adds three years for each prior HS 11379. Lopez appealed.
The Second District affirms.
The opinion resolves two main issues. The first issue, whether the trial court's instructional error requires reversal, is resolved convincingly. The second issue, whether a recent amendment to HS 11379 impacts the enhancement under 11370.2, is never really resolved, though the sentence is affirmed. To paraphrase a famous film line, the analysis of the second issues ends not with a bang, but a whimper.
Both issues revolve around 11379, the "transportation" charge. Prior to 2014, (thanks to the erudition of the California Supreme Court of the early 70s) a person was guilty of transportation of methamphetamine simply by possessing some quantity of meth and then moving, however small a distance. When a junkie took a rock from his pocket to put it in his pipe, that was a transportation. When the same junkie, with a dime bag in his jeans, rolled over in bed, that was a transportation. A prosecutor whom I admire, possessing a wry sense of humor, once opined he could obtain a transportation conviction based upon the rotation of the earth since the statute didn't specify a relevant inertial frameset.
Thankfully, in 2014, the legislature changed 11379 to require that the transportation of meth be for the purpose of sale, no doubt the original intent. The trial judge in Lopez's case, however, instructed the jury on the old statute, which did not require the sales intent. This was clearly error, however because the jury necessarily found Lopez guilty of possessing the same drugs for sale in its 11378 (possession for sale) verdict, the error was harmless.
The second issue was the 1170.2 enhancement. Section 1170.2 adds three years for each prior conviction for sales-related charges, save 11379 prior to 2013. Lopez argues that his 11379 convictions shouldn't count now, due to the recent amendment to 11379. The panel here "turns yella" and never really addresses the issue. It states that when lawmakers enact statutes that reference existing statutes, it the version of the referenced statute in effect at the time of the inaction that controls (which cuts against Lopez). But then it goes on to examine the legislative history of 11370.2 which states an intent to punish those engaged in the selling of narcotics (which cuts for Lopez). In the end the panel never really states a useful rule. Rather it states that the record is ambiguous as to whether Lopez's prior 11379 convictions were sales-related and affirms.
So which is it? Does the legislative history of 11370.2 require prior transportation cases to be sales-related, or just a junkie who rolls over in bed?
Wednesday, December 7, 2016
Tuesday, December 6, 2016
P v. Macabeo (Cal. Supremes) Searches Incident to Arrest Require an Arrest
Mr. Macabeo was riding a bicycle when he rolled through a stop sign. Apparently having already shot all the fish in its barrel, the Torrance police stopped Macabeo and began to grill him about his criminal record and probation status.
After he told the police he was not on probation, the officers had Macabeo "assume the position" and patted him down, finding nothing. Macabeo agreed to let the police empty his pockets and a mobile phone was removed.
Macabeo was then ordered to sit on the curb and remove his shoes before putting his hands upon his head. He asked if he was under arrest. The policeman said, "I'll explain everything in a second. Do not stand up; you don't want to do that." The policeman's "second" turned into about 10 minutes while another policeman went through Macabeo's phone, finding photographs of underage girls. Macebeo was then arrested for possessing pornography involving persons under 18.
Macabeo moved to suppress the evidence of the photographs on the ground they were obtained via a search conducted in violation of the Fourth Amendment. The trial court denied the motion because, even though Macabeo had not been arrested, the police could have arrested him for rolling through the stop sign. The trial court held that any time the police have probable cause to arrest someone, all of the liberty intrusions justified by a custodial arrest are fair game for the government.
The California Supreme Court reverses and remands for the trial court to order the photographs suppressed.
While the opinion, by necessity, addresses numerous issues, including the retroactive effect of Riley v California, the most important aspect of the opinion is the holding that the "search incident to arrest" exception to the warrant requirement is only applicable when an actual custodial arrest is made. In other words, the liberty intrusions attendant to a search incident to arrest are justified by governmental interests created by the arrest. When there is no actual arrest, these government interests are not present, and no justification for the intrusions exists.
Senator (nee Attorney General) Harris tries to make a game of the Fourth Amendment, arguing that government intrusions into individuals' Constitutionally protected interests should be reduced to a theoretical algorithm weighted in favor of the government. The California Supreme Court wisely rejects such tosh. The results of Harris' position would have been dangerously absurd.
Under Harris' interpretation of the Fourth Amendment, if you were seen jaywalking, the police could, without violating the Constitution, stop you, have you sit on the curb for 48 hours while officers take turns grilling and searching you. They could also take you into the police car and make you strip naked while they checked your orifices for weapons and drugs. After this two day humiliation was complete, the police could then give you a warning for jaywalking and tell you to enjoy the rest of your week. And this would all be Constitutional under Harris' Constitution.
Her reasoning is as follows. Because the police could have, Constitutionally, arrested you for jaywalking, they then could have searched you incident to arrest and questioned you before taking you to the county jail. Upon arriving at the jail, they could strip search you before placing you into general population. And they could then keep you locked up for 48 hours before having to take you before a Magistrate where you could plead for your release. All this would not violate the Constitution, says the United States Supreme Court.
Sen. Harris argues that the government should be able to do all of this without having to actually arrest you. In her Constitution, these government intrusions need not be justified by the existence of actual government interests, rather an individual gives up all rights against such intrusions whenever there is probable cause of any law violation. Such an interpretation is malefic.
Luckily for Californians, our Supreme Court agrees with me.
After he told the police he was not on probation, the officers had Macabeo "assume the position" and patted him down, finding nothing. Macabeo agreed to let the police empty his pockets and a mobile phone was removed.
Macabeo was then ordered to sit on the curb and remove his shoes before putting his hands upon his head. He asked if he was under arrest. The policeman said, "I'll explain everything in a second. Do not stand up; you don't want to do that." The policeman's "second" turned into about 10 minutes while another policeman went through Macabeo's phone, finding photographs of underage girls. Macebeo was then arrested for possessing pornography involving persons under 18.
Macabeo moved to suppress the evidence of the photographs on the ground they were obtained via a search conducted in violation of the Fourth Amendment. The trial court denied the motion because, even though Macabeo had not been arrested, the police could have arrested him for rolling through the stop sign. The trial court held that any time the police have probable cause to arrest someone, all of the liberty intrusions justified by a custodial arrest are fair game for the government.
The California Supreme Court reverses and remands for the trial court to order the photographs suppressed.
While the opinion, by necessity, addresses numerous issues, including the retroactive effect of Riley v California, the most important aspect of the opinion is the holding that the "search incident to arrest" exception to the warrant requirement is only applicable when an actual custodial arrest is made. In other words, the liberty intrusions attendant to a search incident to arrest are justified by governmental interests created by the arrest. When there is no actual arrest, these government interests are not present, and no justification for the intrusions exists.
Senator (nee Attorney General) Harris tries to make a game of the Fourth Amendment, arguing that government intrusions into individuals' Constitutionally protected interests should be reduced to a theoretical algorithm weighted in favor of the government. The California Supreme Court wisely rejects such tosh. The results of Harris' position would have been dangerously absurd.
Under Harris' interpretation of the Fourth Amendment, if you were seen jaywalking, the police could, without violating the Constitution, stop you, have you sit on the curb for 48 hours while officers take turns grilling and searching you. They could also take you into the police car and make you strip naked while they checked your orifices for weapons and drugs. After this two day humiliation was complete, the police could then give you a warning for jaywalking and tell you to enjoy the rest of your week. And this would all be Constitutional under Harris' Constitution.
Her reasoning is as follows. Because the police could have, Constitutionally, arrested you for jaywalking, they then could have searched you incident to arrest and questioned you before taking you to the county jail. Upon arriving at the jail, they could strip search you before placing you into general population. And they could then keep you locked up for 48 hours before having to take you before a Magistrate where you could plead for your release. All this would not violate the Constitution, says the United States Supreme Court.
Sen. Harris argues that the government should be able to do all of this without having to actually arrest you. In her Constitution, these government intrusions need not be justified by the existence of actual government interests, rather an individual gives up all rights against such intrusions whenever there is probable cause of any law violation. Such an interpretation is malefic.
Luckily for Californians, our Supreme Court agrees with me.
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