Los Angeles Metro Area Criminal Defense

Thursday, March 17, 2016

People v. Juarez and Juarez: The Two Dismissal Rule

People v. Juarez and Juarez (2016) 62 Cal. 4th 1164

Here, two defendants with the same last name of Juarez were charged with attempted murder twice and the charges were dismissed twice when the state was unprepared to proceed. In a third complaint, the state charged the men with conspiracy to commit murder based on the same underlying facts as the twice-dismissed charges.

The defendants sought dismissal in the trial court which was denied and sought a writ in the Court of Appeal. But the Court of Appeal held that conspiracy to commit murder is not the "same offense" as attempted murder under section 1387, and thus the statute does not bar prosecution for that crime. The court expressed unease with this conclusion but believed that a recent opinion, People v. Traylor (2009) 46 Cal.4th 1205 [96 Cal.Rptr.3d 277, 210 P.3d 433] (Traylor)), compelled the conclusion.

Penal Code Section 1387

Penal Code section 1387 generally permits a felony charge to be dismissed and refiled once, but not twice. Two dismissals "bar ... any other prosecution for the same offense." (§ 1387, subd. (a).)

Section 1387 implements a series of related public policies. It curtails prosecutorial harassment by placing limits on the number of times charges may be refiled. [Citations.] The statute also reduces the possibility that prosecutors might use the power to dismiss and refile to forum shop. [Citations.] Finally, the statute prevents the evasion of speedy trial rights through the repeated dismissal and refiling of the same charges.” (Ibid.)

Holding

The California Supreme Court held that Traylor does not govern this situation. Because, as pleaded, the conspiracy charges contain all of the elements of the twice-dismissed attempted murder charges, they are the same offenses under section 1387.

Rational

Although the statutory elements of conspiracy to commit murder do not include all of the elements of attempted murder, under the accusatory pleading test. if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.” (People v. Shockley (2013) 58 Cal.4th 400, 404; cf. People v. Reed (2006) 38 Cal.4th 1224, 1229 [for purposes of § 954, only the statutory elements test applies].)

The California Supreme court applied the accusatory pleading test. Applying that test, the conspiracy to commit murder charges, as pleaded, are the same offenses as the previously dismissed attempted murder charges.

The element of attempted murder that is missing from conspiracy to commit murder is a direct but ineffectual act toward accomplishing the intended killing. The felony complaint in this case alleged several overt acts regarding each conspiracy charge, including actually shooting the intended victim of each alleged conspiracy.

Alleging an actual shooting of the intended victim necessarily also alleges a direct act toward accomplishing the intended killing. Accordingly, as pleaded, the conspiracy charges include all of the elements of the previous attempted murder charges, thus making them the same offenses as the previous charges.

Thus, the Supreme Court reversed and remanded to the trial court to take action consistent with this ruling.

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

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Friday, November 27, 2015

People v. Buycks (2015) Cal.App.4th : Prop 47 reduced misdemeanor cannot be used as a felony bail enhancement

In People v. Buycks, Case No. B262023, decided on October 20, 2015, defendant committed a felony narcotics offense (Health & Saf. Code, § 11350) and, while out on bail on that first offense, committed two additional felony offenses: petty theft with a prior (Pen. Code, § 666, subd. (a)) and evading a police officer (Veh. Code, § 2800.2, subd. (a)). In sentencing appellant in the second case, the court imposed a two-year sentencing enhancement pursuant to Penal Code section 12022.1, subdivision (b), which applies when a defendant commits a second felony while out on bail on an earlier felony. After voters passed Proposition 47, the trial court in the first case granted appellant’s petition to reduce his narcotics offense to a misdemeanor. Thereafter, the court in the second case reduced his petty theft with a prior count to a misdemeanor. The second evading police felony count remained, and, because appellant’s original sentence was structured around the petty theft with a prior as the principal term, the court conducted a full resentencing to elevate the remaining felony count to a full base term. The court reimposed the section 12022.1 enhancement. The trial court erred.

Section 12022.1, subdivision (b), provides, “Any person arrested for a secondary
offense that was alleged to have been committed while that person was released from
custody on a primary offense shall be subject to a penalty enhancement of an additional
two years, which shall be served consecutive to any other term imposed by the court.”
Both “primary offense” and “secondary offense” in section 12022.1 are statutorily limited
to felonies. “Primary offense” means “a felony offense for which a person has been
released from custody on bail or on his or her own recognizance prior to the judgment
becoming final, including the disposition of any appeal, or for which release on bail or
his or her own recognizance has been revoked.” (§ 12022.1, subd. (a)(1).) “Secondary
offense” means “a felony offense alleged to have been committed while the p

The precise issue is whether the voters intended section 1170.18, subdivision (k) to preclude the trial court from reimposing the on-bail enhancement when it resentenced appellant in his second case after his felony in the first case was reduced to a misdemeanor. Appellant was subject to a full resentencing in the second case. (See Couzens & Bigelow, Proposition 47, supra, at p. 57 [“Because the Proposition 47 count is part of a multiple-count sentencing scheme, changing the sentence of one count fairly puts into play the sentence imposed on non-Proposition 47 counts, at least to the extent necessary to preserve the original concurrent/consecutive sentencing structure. The purpose of section 1170.18 is to take the defendant back to the time of the original sentencing and resentence him with the Proposition 47 count now a misdemeanor.” (Italics added.); id. at p. 59 [“If the petitioner is resentenced as a misdemeanor on an eligible count, but will remain sentenced as a felon on one or more other counts, the court should resentence on all counts.”]; cf. § 1170.18, subd. (b) [“If the petitioner satisfies the criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the petitioner resentenced to a misdemeanor.” (Italics added.)]; People v. Navarro (2007) 40 Cal.4th 668, 681 [finding full resentencing on all counts was appropriate “so the trial court can exercise its sentencing discretion in light of the
changed circumstances”].)

Because the court was sentencing appellant anew, it was required to reevaluate the applicability of section 12022.1 at that time. By then, appellant’s felony in the first case had been reduced to a misdemeanor. In that circumstance, the plain language of section 1170.18, subdivision (k) directed that appellant’s prior felony must be treated as a “misdemeanor for all purposes.” Since the plain meaning of section 12022.1 required that both the primary and secondary offenses be felonies in order for appellant to incur the additional penalty, the court could not reimpose the section 12022.1 enhancement.

This case is analogous to People v. Park (2013) 56 Cal.4th 782 (Park), in which
our high court interpreted the nearly identical phrase in section 17, subdivision (b) to
preclude imposition of a sentencing enhancement based on a prior “wobbler” conviction
that had been reduced to a misdemeanor. When the court properly has exercised its discretion to reduce a wobbler to a misdemeanor under the procedures set forth in section 17(b), the statute generally has been construed in accordance with its plain language to mean that the offense is a misdemeanor ‘for all purposes.’” (Park, at p. 793.)

Thus, the two-year on-bail enhancement pursuant to section 12022.1 is stricken.

Copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

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Friday, November 13, 2015

People v. Hoffman: Checks Cannot Be Aggregated To Deny Prop 47 Re-Sentencing.

In People v. Hoffman, _Cal.App.4th__, Case No. B261945, decided on November 5, 2015, the defendant was convicted of seven separate felony counts for violating Penal Code section 473 [forged check] in May 2014. There were 18 checks and originally 18 counts, as well as a few additional counts. The amount of the checks ranged from $150 to $450, totaling $8734. The defendant signed a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) that allowed the court to consider the dismissed counts at sentencing. Defendant had no prior convictions.

In June 2014, the trial court suspended imposition of sentence and placed Hoffman on formal felony probation with terms and conditions, including 180 days in county jail. The court denied Hoffman's request to reduce the felonies to misdemeanors but encouraged her to renew the request if she succeeds in her drug treatment program.

In July 2014, the trial court released Hoffman from serving her remaining jail term to enter a residential treatment program. Hoffman subsequently violated probation and tested positive for drugs several times.

In November 2014, the electorate passed Proposition 47. The Act reclassifies forgery as a misdemeanor if "the value of the check . . . does not exceed [$950]." (§ 473, subd. (b).) In December 2014, defendant filed a petition for resentencing under the Act. (§ 1170.18.) The trial court denied the request to reduce Hoffman's seven felony forgery counts to misdemeanors because the total amount of the checks exceeded $950. The court said, "The aggregate amount exceeds the $950. I think it takes her outside the spirit of the law that was passed by the voters."
Defendant appealed the court’s ruling.

The appellate court explained that Proposition 47 allows a person, such as Hoffman, who is currently serving a felony sentence for an offense that is now a misdemeanor (forgery), to petition for recall of sentence and resentencing in accordance with its provisions. (§§ 1170.18, subd. (a), 473, subd. (b).) If the petitioner satisfies the statutory criteria, the court "shall" resentence petitioner to a misdemeanor "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).) There is no other discretionary provision. The Act "shall be liberally construed to effectuate its purposes." (Prop. 47, eff. Nov. 5, 2014, § 18; see Voter Information Guide, supra, text of proposed laws, p. 74.)

The statutory criteria for resentencing are that the "person [is] currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor . . . had this act been in effect at the time of the offense . . . ." (§ 1170.18, subd. (a).) "Unreasonable risk of danger to public safety" is defined to mean an unreasonable risk that the petitioner will commit a new super-strike offense, such as murder, rape or child molestation. (Id., subd. (c), § 667, subd. (e)(2)(C)(iv).)

Hoffman satisfies the statutory criteria for resentencing. She is serving a sentence for conviction of felonies that would have been misdemeanors under the Act. Section 473, subdivision (b), as amended by the Act, provides, "[A]ny person who is guilty of forgery relating to a check, . . . where the value of the check . . . does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year," unless the person has a prior super-strike conviction, is required to register as a sex-offender, or has committed identity theft in connection with the forgery.

On appeal the prosecution argued that Hoffman's Harvey waiver allowed the trial court to rely on facts underlying the dismissed forgery and grand theft counts to find that Hoffman is "outside the spirit" of Proposition 47. The appellate court explained that the Harvey waiver allowed the trial court to rely on facts underlying the dismissed counts to make whatever sentencing determinations were authorized under section 1170.18. But only two determinations were authorized by section 1170.18: (1) whether Hoffman meets the statutory criteria, and (2) whether Hoffman's resentencing would pose an unreasonable risk of danger of a super-strike offense.

The trial court may not refuse to reduce a defendant's sentence based on the court's notion of the statute's "spirit." The "criteria" for resentencing are explicitly stated in section 1170.18, subdivision (a), and "unreasonable risk" is defined in subdivision (c). If the criteria are met, and the resentencing does not pose an unreasonable risk of a new super-strike offense, the "felony sentence shall be recalled and the petitioner resentenced to a misdemeanor." (Id., subd. (b).) Further, the appellate court explained that in construing a measure, we may not undertake to rewrite its unambiguous language. (People v. Goodliffe (2009) 177 Cal.App.4th 723, 726.)

The appellate court reversed the trial court’s order.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

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Sunday, November 1, 2015

People v. Page: Vehicle Code section 10851 Conviction Is Not Prop 47 Eligible

Defendant was convicted of violating Vehicle Code section 10851 [taking or driving a vehicle], along with other crimes. Subsequently, he filed a petition under Proposition 47 to have this conviction reduced to a misdemeanor but the trial court denied his petition. Defendant appealed the order in People v. Page (2015) __Cal.App.4th__, Case No. E062760.

On appeal defendant argued that Vehicle Code section 10851 is a lesser included offense to Penal Code section 487, subdivision (d)(1), grand theft, auto. (People v. Barrick (1982) 33 Cal.3d 115, 128.) Because the greater offense of Penal Code section 487 [grand theft auto] is eligible for a reduction, the lesser included offense of Vehicle Code section 487 should be found to be Proposition 47 eligible too. Proposition 47 makes Penal Code section 487 "or any other provision of law defining grand theft" a misdemeanor if the amount taken wasn't over $950. (Pen. Code, § 490.2(a).)

But the appellate court rejects this argument. Penal Code section 1170.18 does not identify Vehicle Code section 10851, the offense at issue in the present appeal, as one of the code sections amended or added by Proposition 47. (Pen. Code, § 1170.18.) The appellate court explains that it cannot say that defendant would have been guilty of a misdemeanor had Proposition 47 been in effect at the time of his offense because Vehicle Code section 10851 is a “wobbler” offense, punishable either as a felony or misdemeanor. (Veh. Code, § 10851, subd. (a); see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4 [listing Veh. Code § 10851, subd. (a) as a statute that provides for “alternative felony or misdemeanor punishment”].) Proposition 47 left intact the language in Vehicle Code
section 10851, subdivision (a).

In footnote 2, the appellate court also states that “[e]ven if we were to assume that Penal Code section 490.2 applied as defendant would have it—to reduce some Vehicle Code section 10851 convictions that would otherwise be felonies to misdemeanors, at least where the facts underlying the conviction involve theft (as opposed to merely joyriding) of a vehicle valued $950 or less—it does not appear that defendant would be entitled to relief. Defendant’s guilty plea shows only that he unlawfully took or drove a vehicle; nothing in the record establishes the value of the vehicle to be $950 or less.{CT 1, 5-7} The burden of proof lies with defendant to show the facts demonstrating his eligibility for relief, including that the value of the stolen vehicle did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 877.) Defendant did not attempt to meet that burden in his petition, providing no information at all regarding his eligibility for resentencing in his petition.{CT 35-36}”

The court also rejects defendant’s equal protection argument: “The California
Supreme Court has held that “neither the existence of two identical criminal statutes
prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion
in charging under one such statute and not the other, violates equal protection principles.”
(People v. Wilkinson (2004) 33 Cal.4th 821, 838)

The order appellant appealed from was affirmed.

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Tuesday, October 13, 2015

Wilkinson v. Gingrich (9th Cir. 2015): Double Jeopardy Prevents Perjury Charge After Acquittal

In Wilkinson v. Gingrich (9th Cir. 2015), Case No. 13-56952, decided on September 3, 2015,
the Ninth Circuit held that defendant’s acquittal in traffic court for a speeding ticket precluded the state court from charging him with perjury based upon his testimony at the traffic court trial.

The panel affirmed a district court’s ruling granting James Kendell Wilkinson’s habeas corpus petition. The petition challenged his conviction for perjury for testifying in a traffic court proceeding that he was not the driver of a car that had been stopped for speeding and whose driver had been ticketed. The State of California brought the perjury prosecution after Wilkinson was acquitted of the speeding offense. The panel agreed with the district court that the state appellate court unreasonably applied Ashe v. Swenson, 397 U.S. 436 (1970), when it held that Wilkinson’s acquittal in traffic court did not bar the subsequent perjury prosecution. The panel held that the traffic court necessarily decided, in Wilkinson’s favor, an issue that was critical to both the traffic court and the perjury case —that Wilkinson was not the driver of the speeding car—and that the State was therefore precluded by the Double Jeopardy Clause from bringing the perjury prosecution.

Under principles of collateral estoppel, an issue of fact that has been determined by a valid and final judgment may not be litigated between the same parties in the future. In Ashe, the Supreme Court found that collateral estoppel applied to the double jeopardy clause. The analysis has three steps: (1) identify the issues in the two actions to determine whether they are sufficiently similar and material to invoke the doctrine; (2) examine the record in the prior case to determine whether the similar issue was litigated and (3) examine the record in the prior case to determine whether the similar issue was necessarily decided. Applying AEDPA's standard of review (see 28 U.S.C. §2254(d)(1)), the Ninth Circuit concluded that the state court unreasonably applied Ashe. The issue in the traffic case (whether Wilkinson was the driver) and the issue in the perjury case (whether Wilkinson was telling the truth when he denied being the driver) were sufficiently similar and material for collateral estoppel and double jeopardy to apply. The traffic court judge in the first case necessarily decided that Wilkinson was not the driver and that he was telling the truth when he stated this.

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Wednesday, October 7, 2015

United States v. Fowlkes - Unlawful Search in Defendant’s Rectum

In United States v. Fowlkes (9th Cir. 2015) , Case No. 11-50273, defendant’s conviction for possessing and distributing cocaine was reversed in part on appeal where the court found that officers’ forcible removal of an unidentified substance from defendant’s rectum was an illegal search under the Fourth Amendment where the officers did not have medical training or a warrant.

On September 13, 2006, after witnessing what appeared to be a narcotics transaction between Fowlkes and an unidentified man, Long Beach Police Department (LBPD) officers requested that a marked car execute a pretextual traffic stop. Fawkes’ vehicle was pulled over for an expired registration and Fowlkes and his passenger were asked to exit the vehicle. Fowlkes denied consent to search the car. But officers claimed they saw marijuana in the open side panel of the car and a substance they believed was cocaine base on the front seats of the car. They arrested Fowlkes for felony drug possession and transported him to the Long Beach City Jail for processing.

At intake, Fowlkes was strip searched by officers in the jail's strip search room. Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and “assistance” in the form of additional officers because he thought Fowlkes might have drugs. There was conflicting evidence as to whether Fowlkes was trying to push an item further into his anus.

To prevent that, Gibbs “delivered a drive stun tase to the center portion of defendant's back.” Fowlkes' arms went straight into the air, and the officers handcuffed him. Fowlkes began to “squirm[ ]” and “struggl[e],” and the officers “lean[ed] him against the wall, · brace[d] his body up against the wall” so that “[h]e end[ed] up being bent over.” With Fowlkes in this position, the officers testified that they could see what appeared to be a plastic bag partially protruding from Fowlkes' rectum. Officers continued to “brac[e] [Fowlkes] up against the wall” to prevent him from resisting.

At this point, Fowlkes was handcuffed and incapacitated by five male officers. Fowlkes had no ability to destroy or further secrete what was in the plastic bag. Neither Sergeant Gibbs nor the other officers could tell what, if anything, the plastic bag contained while it remained in Fowlkes' rectum. Nor could they determine how large it was or how far it extended into Fowlkes' body. Despite this, and despite the fact that none of the officers had any relevant medical training, the officers did not attempt to obtain a warrant, summon medical personnel, move Fowlkes to a sanitary location, or allow Fowlkes to pass the suspected contraband naturally.

Instead, Sergeant Gibbs forcibly “retrieved” the bag. He put on the protective gloves he had brought along to the “search” and pulled the object from Fowlkes' rectum without the assistance of anesthesia, lubricant, or medical dilation. Sergeant Gibbs testified that he was able to remove the object using his thumb and index finger without penetrating Fowlkes' anal cavity. Officer Harris testified that the removal itself was a difficult, abrasive procedure: “I watched the entire process of him removing it in his fingers. [The object] went from a dime size to a penny size to a nickel size to a quarter size to somewhat near a golf ball size as it was taken out. Officer Harris further testified that he could “see blood and what looked to be feces” on the plastic bag after it had been removed. Photographs of the object that are included in the appellate record confirm that the object was covered in blood.

On appeal, Fowlkes argued that the district court erred by denying his motions to suppress the evidence extracted from his rectum at the jail because this evidence was retrieved in an unreasonable manner, in violation of his Fourth Amendment rights, among other issues.

Searches that require intrusion into a person's body implicate greater constitutional concerns. See Bouse v. Bussey, 573 F.2d 548, 550 (9th Cir.1977) (per curiam) (quoting Schmerber v.. California, 384 U.S. 757, 770 (1966) (“Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.”)). An intrusion into the human body implicates an individual's “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U.S. 753, 760 (1985). Therefore, while visual cavity searches that do not require physical entry into a prisoner's body are generally permissible without a warrant during the jail intake process, physical cavity searches generally are not. See Schmerber, 384 U.S. at 769–70 (“The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.”).

Here, the LBPD officers went beyond the visual cavity search found reasonable in Bull. They seized an unidentified object of unknown size from Fowlkes' rectum, subjecting him to a physically invasive, painful experience and thereby implicating his “most personal and deep-rooted expectations of privacy.” Lee, 470 U.S. at 760. At the same time, however, the officers, while acting without a warrant and engaging in physical contact, were not acting “on the mere chance that desired evidence might be obtained.” Schmerber, 384 U.S. at 770. They had reason to believe desired evidence was located inside of Fowlkes' body because Sergeant Gibbs could see a portion of an object which he thought Fowlkes was attempting to further secrete. Thus, they conducted a warrantless physical seizure of contraband they actually observed during the course of a permissible warrantless visual search.

The Ninth Circuit determined that the issue for it to decide was whether the officers' warrantless, physically invasive seizure of actual (not merely suspected) contraband, was unreasonable under the Fourth Amendment. The court held the officers’ conduct was unreasonable.

In reaching this conclusion, the court applied the same principle in analyzing the constitutionality of a seizure found in a nearly identical context involving extraction of evidence from a suspect's rectum in United States v. Cameron, 538 F.2d 254, 258 (9th Cir.1976) (“[A] clear indication that the suspect is concealing contraband does not authorize government officials to resort to any and all means at their disposal to retrieve it.”); see also United States v. Edwards, 666 F.3d 877, 884 (4th Cir.2011) (“The manner in which contraband is removed from a suspect during a sexually intrusive search, no less than the manner in which the contraband initially is discovered, must be considered in determining under the Bell analysis whether the search was reasonable.”). In determining whether an individual search or seizure is reasonable, we evaluate the “totality of [the] circumstances,” Missouri v. McNeely, 133 S.Ct. 1552, 1559 (2013), including “[1] the scope of the particular intrusion, [2] the manner of its conduct, and [3] the justification for initiating it.” Cameron, 538 F.2d at 258 (internal quotation marks omitted).

Here, the scope of the seizure intruded beyond the surface of Fowlkes' body, interfering with his bodily integrity. As the Supreme Court explained in Schmerber, “[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” 384 U.S. at 767. The Court has subsequently described the interest in bodily integrity as implicating the “most personal and deep-rooted expectations of privacy.” Lee, 470 U.S. at 760 (holding a compelled surgical intrusion to remove a bullet, fired by a robbery victim, from the chest of the suspect unreasonable under the Fourth Amendment); see also Cameron, 538 F.2d at 258 (“[T]he fourth amendment imposes a stricter standard on the ‘means and procedures' of a body search than does the due process clause.”). And here, the seizure interfered with a particularly personal, private area of Fowlkes' anatomy.

The court found that LBPD officers conducted a warrantless forcible seizure of an unidentified item of unknown size from Fowlkes' rectum by non-medical personnel who (1) did nothing to assure that the removal was safe and performed under sanitary conditions; (2) were aided by the use of a taser but not by lubricant; (3) seized the object in the absence of exigent circumstances; and (4) acted in violation of LBPD policy. No single factor is dispositive, but under the totality of the circumstances presented here, we conclude that the manner of this seizure was unreasonable. See Cameron, 538 F.2d at 258–60. The district court therefore erred in admitting the unreasonably seized evidence at Fowlkes' trial.

Finally, numerous jurisdictions have concluded in similar circumstances that such warrantless conduct violates the Fourth Amendment. This persuasive authority reinforced the court’s conclusion that the seizure of evidence from Fowlkes' rectum, under the totality of the circumstances, violated his Fourth Amendment rights, and that the district court therefore should have suppressed the evidence.

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Sunday, October 4, 2015

In re Erica R.: Search Condition for Juvenile’s Electronic Devices Goes Too Far

In re Erica R. (2015) _Cal.App.4th__, Case No. A143215, decided on September 28, 2015, involves a minor who pled guilty to misdemeanor possession of ecstasy after a school counselor found a baggie of pills in her purse. As a condition of probation, the juvenile court required defendant to submit to a search of her electronic devices, and to turn over her passwords to her probation officer. The juvenile appealed and argued that the search condition was unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent).

Welfare and Institutions Code section 730, subdivision (b) empowers the juvenile court to "impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." In In re Victor L. (2010) 182 Cal.App.4th 902, we discussed the principles underlying the imposition of probation conditions on minors: " 'The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents' [citation], thereby occupying a 'unique role . . . in caring for the minor's well-being.' [Citation.] . . . [¶] The permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults. '[E]ven where there is an invasion of protected freedoms "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." ' [Citation.] This is because juveniles are deemed to be 'more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed.' [Citation.] Thus, ' "a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court." ' [Citations.]" (Id. at pp. 909-910.)

While the juvenile court's discretion is broad, it is not unlimited. Our Supreme Court in Lent stated the criteria for assessing the validity of a condition of probation as follows: "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct {Slip Opn. Page 5} which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality[.]' " (Lent, supra, 15 Cal.3d at p. 486.) "Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Ibid.) The Lent test is conjunctive -- all three prongs must be satisfied before we will invalidate a term of probation. (People v. Olguin (2008) 45 Cal.4th 375, 379.) Courts have "consistently held that juvenile probation conditions must be judged by the same three-part standard applied to adult probation conditions under Lent[.]" (In re D.G. (2010) 187 Cal.App.4th 47, 52 (D.G.); see also In re Josh W. (1997) 55 Cal.App.4th 1, 6.)

Here, the court found that the challenged electronic search condition has no relationship to the crime of misdemeanor possession of ecstasy. There is nothing in the original or amended juvenile petitions or the record that connects Erica's use of electronic devices or social media to her possession of any illegal substance. The Attorney General argues that Erica's cell phone and electronic devices "could have been used to negotiate the sales of the illegal substance." The problem with this argument is that there is no evidence suggesting that Erica--who was convicted of misdemeanor possession, not selling any illegal substance--ever used an electronic device in this way.

Obviously, the typical use of electronic devices and of social media is not itself criminal. "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life[.]' " (Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473, 2494-2495].)

Finally, the record does not support a conclusion that the electronic search condition is reasonably related to future criminal activity by Erica. The juvenile court justified the electronic search condition solely by reference to its experience that "many juveniles, many minors, who are involved in drugs tend to post information about themselves and drug usage." However, "[n]ot every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable." (People v. Brandao (2012) 210 Cal.App.4th 568, 574.) There is nothing in this record regarding either the current offense or Erica's social history that connects her use of electronic devices or social media to illegal drugs. In fact, the record is wholly silent about Erica's usage of electronic devices or social media. Accordingly, "[b]ecause there is nothing in [Erica's] past or current offenses or [her] personal history that demonstrates a predisposition" to utilize electronic devices or social media in connection with criminal activity, "there is no reason to believe the current restriction will serve the rehabilitative function of precluding [Erica] from any future criminal acts." (D.G., supra, 187 Cal.App.4th at p.53.)

The appellate court rejected the Attorney General’s argument that Erica's electronic search condition is valid under People v. Ramos (2004) 34 Cal.4th 494 (Ramos). The defendant in Ramos was on probation for a prior DUI conviction when police conducted a search of his home and truck pursuant to a probation search condition. (Id. at pp. 504-505.) " '[J]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a final order for the minor's reformation and rehabilitation.' " (In re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128.) A juvenile "cannot refuse probation [citations] and therefore is in no position to refuse a particular condition of probation." (In re Binh L. (1992) 5 Cal.App.4th 194, 202 (Binh).) Courts have recognized that a "minor cannot be made subject to an automatic search condition; instead, such condition must be tailored to fit the circumstances of the case and the minor." (See People v. Rios (2011) 193 Cal.App.4th 584, 597; see also Binh, supra, 5 Cal.App.4th at p. 203.)

For the reasons discussed above, Erica's electronic search condition is not properly tailored to her circumstances under Lent and is therefore invalid. The disposition is modified to strike the probation condition requiring Erica to submit "any electronic[s] with passwords under your control" to search. In all other respects the disposition is affirmed. {Slip Opn. Page 9}.

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