Courtesy of James R. Touchstone, Esq.


  1. Peace officer’s nonconsensual blood draw of defendant, who signed probation orders stating that he must submit to chemical testing at a peace officer’s request, did not violate defendant’s Fourth Amendment rights.

People v. Cruz, 2019 Cal. App. LEXIS 384 (5th Dist. Apr. 25, 2019)

Facts: In May 2016, Officer Opinski of the Merced Police Department observed a speeding vehicle on a roadway. Defendant Manuel Miramontes Cruz, Jr. (“Cruz”), the driver of the car, then veered partially into the opposing lane briefly while navigating a curve. The officer followed. Cruz subsequently made a U-turn, ran a stop sign, and made two more turns, almost hitting a pedestrian. Officer Opinski activated his emergency lights. Cruz yielded, hitting a curb. Cruz then left the vehicle and ran, falling repeatedly. After catching up, Officer Opinski arrested Cruz, and then detected a strong smell of alcohol coming from Cruz’s breath and person. When Officer Opinski asked if Cruz would submit to a fieldsobriety test, Cruz said “No.” Cruz responded to each of the officer’s subsequent questions with “I want my lawyer.” Opinski next read Cruz a form which specified the consequences of failing to submit to a breath or blood test. Cruz again responded to all questions by saying he wanted his lawyer. Officer Opinski stated that Cruz was under the influence and too impaired to operate a motor vehicle safely. Cruz’s driver’s license was suspended.

After Cruz refused to take a breath or blood test, the Officer Opinski transported Cruz to the police station so Opinski could author a search warrant for Cruz’s blood. After learning from dispatch that Cruz was on DUI probation and required to submit to a breath or blood test, Opinski abandoned the warrant and instead transported Cruz to the hospital for a blood draw. At the hospital, Cruz expressly stated he was not consenting to a blood draw. However, the phlebotomist drew Cruz’s blood anyway. Cruz’s blood-alcohol level was 0.157 percent.

Cruz was charged with driving under the influence (DUI) of alcohol within 10 years of a prior felony DUI conviction (Veh. Code section 23550.5 (a)), driving with a blood-alcohol level of 0.08 percent or more within 10 years of a prior felony DUI conviction (id., Section 23550.5 (a)), driving with a suspended license (id., Section 14601.2 (a)), and resisting arrest (Pen. Code section 148 (a)(1)). Prior to the preliminary hearing, Cruz moved to suppress all evidence obtained as a result of the blood draw, arguing that the warrantless invasion of his bodily integrity, undertaken without his consent, violated the Fourth Amendment. The magistrate denied the motion due to Cruz’s probation terms. Cruz pled no contest to three of the four counts in return for an indicated sentence of two years in prison. His subsequent motion to withdraw his plea was denied. Cruz appealed.

Held: On appeal, Cruz argued that the forced blood draw violated his Fourth Amendment rights because he did not consent to the draw and the consequence of his refusal should have been prosecution for a probation violation. The California Fifth District Court of Appeal held that the warrantless seizure of his blood sample did not violate the Fourth Amendment. In reaching its conclusion, the Court explained that Cruz had expressly agreed in his probation conditions that if he was arrested for drunk driving, he would not refuse to submit to a chemical test of his blood.

The Court explained that, under California law, an individual may validly consent in advance to warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term. “Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. […] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.”[1] However, a “‘probationer who has been granted the privilege of probation on condition that he submit at any time to a warrantless search mayhave no reasonable expectation of traditional Fourth Amendment protection.’ [Citation.] Therefore, ‘when [a] defendant in order to obtain probation specifically agree[s] to permit at any time a warrantless search of his person, car and house, he voluntarily waive[s] whatever claim of privacy he might otherwise have had.’ [Citations.]” (People v. Ramos (2004) 34 Cal.4th 494, 506.) If someone eligible for probation finds the conditions of the probation “‘more onerous than the sentence he would otherwise face, he may refuse probation’ [citation] and simply ‘choose to serve the sentence’ [citation].” (People v. Moran (2016) 1 Cal.5th 398, 403, fn. omitted.)

Here, at the time of Cruz’s arrest, he was on formal felony probation since June 2013 as a result of a violation of Vehicle Code section 23550 (a) in an earlier matter. Cruz signed written probation conditions which included the text:

“11 Submit your person, vehicle, place of residence or any other belongings to search and seizure, without a warrant, any time day or night, by any Probation Officer and/or Peace Officer, with or without probable cause. [¶] … [¶]

34  If arrested for driving under the influence of alcohol in violation of Section 23152 or 23153 of the Vehicle Code, shall not refuse to submit to a chemical test of your blood, breath or urine.” (Italics added.)

Thus, Cruz had expressly agreed that if he was arrested for drunk driving, he would not refuse to submit to a chemical test of his blood. The Fifth District here found that Cruz had no right to refuse a blood draw in the present case. Thus, the Court found Cruz’s challenge to the validity of the search and seizure failed, and the Court accordingly affirmed.

  • “Chalking” the tires of parked vehicles found to be a violation of the Fourth Amendment.

Taylor v. City of Saginaw, 2019 U.S. App. LEXIS 12412 (6th Cir. Apr. 25, 2019)

Facts: Chalking is the practice of parking enforcement officers marking parked vehicles with chalk to track how long the vehicles are parked, and issuing parking citations if the posted time for parking passes and the vehicle has not moved. Between 2014 and 2017, City of Saginaw parking enforcement officer Tabitha Hoskins chalked Plaintiff Alison Taylor’s tires on fifteen separate occasions and issued her citations in kind. Each citation referenced the date and time the chalk was placed on Taylor’s tires. In April 2017, Taylor filed suit against the City under 42 U.S.C. section 1983, alleging the City violated her Fourth Amendment right against unreasonable searches by placing chalk on her tires without her consent or a valid search warrant.

The City filed a motion to dismiss, arguing that chalking was not a search within the meaning of the Fourth Amendment, or, alternatively, if it was a search, it was reasonable under the community caretaking exception to the warrant requirement. The District Court granted the motion to dismiss. It concluded the placement of chalk on Taylor’s tires to gather evidence of a parking violation constituted a search, but that the search was reasonable because (1) there is a lesser expectation of privacy in automobiles, and (2) the search was subject to the community caretaking exception to the warrant requirement. Taylor appealed.

Held: A three-judge panel of the Sixth Circuit Court of Appeals reversed the District Court’s order granting the motion to dismiss. The Court of Appeals explained that, to determine whether a Fourth Amendment violation has occurred, the Court asks two questions: first, whether the alleged government conduct constitutes a search within the meaning of the Fourth Amendment, and second, whether the search was reasonable. The Court found that the chalking constituted a search and that the search was unreasonable.

The Court explained that the Supreme Court has articulated two approaches to determine when government conduct constitutes a search. The first is the search analysis established by Katz v. United States, 389 U.S. 347 (1967). Under Katz, a search occurs when a government official invades an area in which “a person has a constitutionally protected reasonable expectation of privacy.” There are two parts to the Katz search analysis: first, that a person exhibits a subjective expectation of privacy, and second, whether the expectation is one that society will recognize as reasonable. The second search analysis was articulated in United States v. Jones, 565 U.S. 400 (2012). Under Jones, when a governmental invasion is accompanied by a physical intrusion, a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information. The Court, citing Jones, noted that the Katz test has been “added to, not substituted for,” the common-law trespass test.

The Court found that Jones provided the appropriate analytical framework for determining whether chalking constitutes a search within the meaning of the Fourth Amendment. It explained that the threshold question is whether chalking constitutes a common-law trespass upon a constitutionally protected area. The Court looked to and adopted the Restatement (Second) of Torts’ definition of common-law trespass, which defines such trespass as “an act which brings


intended physical contact with a chattel in the possession of another.” The Restatement also provides that an actor can commit a trespass by intentionally causing a chattel to come into contact with another object. Here, the Court found, the City committed a trespass because it made intentional physical contact with Taylor’s vehicle.

Next, the Court explained that, once it determined that the government trespassed on a constitutionally protected area, it had to determine whether the trespass was connected with an attempt to obtain information. Here, the Court found that the practice of chalking vehicles to identify vehicles that had been parked in the same location for a certain period of time amounted to an attempt to obtain information.

The Court then addressed whether the search was unreasonable. The Court explained the basic rule that searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject to only a few specifically established and well-delineated exceptions, and that the government bears the burden of demonstrating an exception to the warrant requirement. The Court held that the City did not meet its burden. The City argued that, if chalking is a search, the search was reasonable because there is a reduced expectation of privacy in an automobile. Further, the City argued that the search was subject to the community caretaker exception to the warrant requirement. The Court rejected both arguments.

The Court rejected the City’s argument that searching Taylor’s vehicle was reasonable solely based on the reduced expectation of privacy in the vehicle. The Court explained that the diminished expectation of privacy in automobiles is what justified the automobile exception to the warrant requirement. However, the Court held that the automobile exception does not apply here because there was no probable cause for the search.

The Court also rejected the City’s argument that the search fell within the community caretaking exception to the warrant requirement. The Court concluded that the City failed to meet its burden of establishing that the community caretaking exception applied to this case. It noted that the City did not demonstrate how the search bears a relation to public safety and that, to the contrary, at the time of the search, Taylor’s vehicle was lawfully parked, imposing no safety risk whatsoever. The Court concluded that because “the purpose of chalking it to raise revenue, and not to mitigate hazard, the City was not acting in its ‘role as [a] community caretake[r].’”

The Court held that the City did not demonstrate, “in law or logic,” that the need to deter drivers from exceeding the time permitted for parking was sufficient to justify a warrantless search under the community caretaking exception. However, the Court noted that this did not mean the exception could never apply to the warrantless search of a lawfully parked vehicle, or that its holding suggests that “no other exceptions to the warrant requirement might apply in this case.”

The Court reversed the lower court’s order granting the City’s motion to dismiss and remanded the case for further proceedings consistent with its decision.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 17, available at www.jones-mayer.com.


Disability retirement application denied to employee who settled a pending termination for cause by resignation.

Martinez v. Pub. Employees’ Ret. Sys., 2019 Cal. App. LEXIS 311 (1st Dist. Apr. 4, 2019)

Facts: In 1985, Linda Martinez started her career as a California State employee. She worked for the State Department of Social Services (“DSS”) starting in 2001. In 2014, DSS sought to terminate Martinez’s employment based on several grounds. In September 2014, the parties agreed to a settlement. Under the settlement terms, Martinez agreed to voluntarily resign from her position and to never reapply or accept any employment position with DSS in the future.

Martinez’s disability retirement application was denied by the Board of Administration of the California Public Employees Retirement System (“CalPERS”). The Board cited Haywood v. American River Protection Dist.,[2] Smith v. City of Napa,[3]and a previous CALPERS decision applying the two cases entitled “In the Matter of Application for Disability Retirement of Vandergoot”[4] (“Vandergoot”) in support of its decision. The Board explained that Martinez’s application was denied because she had been “dismissed from employment for reasons which were not the result of a disabling medical condition. Additionally, the dismissal does not appear to be for the purpose of preventing a claim for disability retirement. Therefore, you are not eligible for disability retirement.”

Joined by her union, Service Employees International Union, Local 1000 (“SEIU”), Martinez appealed the denial to the Board. Martinez and SEIU challenged the soundness and continued validity of Haywood and Smith, especially as extended in Vandergoot. An Administrative Law Judge hearing her appeal concluded CALPERS had correctly cancelled Martinez’s disability retirement application. The CALPERS Board adopted the judge’s proposed decision and denied Martinez’s petition for reconsideration.

Martinez and SEIU next petitioned for a writ of mandate seeking an order to the Board to set aside and reverse its decision, and asking the trial court to “overrule” Vandergoot and “disavow” Haywood and Smith. However, the trial court concluded that Haywood and Smith “set out the relevant law” and were binding as precedential cases. The trial court also concluded that Vandergoot was a reasonable extension of Haywood and Smith, and, moreover, was entitled to “substantial weight” as an administrative decision interpreting statutes and case law within “the agency’s area of expertise.” An appeal followed.

Held: The California First District Court of Appeal observed that courts had traditionally given “great weight to CalPERS’s construction of California’s Public Employees’ Retirement Law.”[5] The Court explained that Government Code section 21156 had always equated disability with a state employee being “incapacitated physically or mentally for the performance of his or her duties.” Generally, a governmental employee loses the right to claim disability benefits if terminated for cause. However, Haywood, Smith, and theBoard’s precedential Vandergoot decision produced exceptions to this general rule. The Court then discussed these three decisions, challenged by Martinez and SEIU (“Appellants”).

The First District explained that the key to the Haywood court’s analysis was Section 21156’s language “pegging disability to an employee being ‘incapacitated physically or mentally for the performance of his or her duties.’” The Haywood court said that while termination of an unwilling employee for cause results in a complete severance of the employer-employee relationship, disability retirement laws contemplate the potential reinstatement of that relationship if the employee recovers and no longer is disabled (upon which disability allowance would terminate). Firing for cause, said that court, constituted a total severance of the employer-employee relationship, thus “eliminating a necessary requisite for disability retirement—the potential reinstatement of his employment relationship.” However, Haywood established an exception, holding that a terminated-for-cause employee can still qualify for disability retirement when the conduct which prompted the termination was the result of the employee’s disability.

Smith provided the second and third exceptions to the general rule. Smith held that a terminated employee may qualify for disability retirement if he or she had a “matured right” to a disability retirement prior to the conduct which prompted the termination. The Smith court explained that a right to a disability retirement is “mature” once the pension board authority approves the disability application. Smith further recognized that there might be instances where “a court, applying principles of equity, will deem an employee’s right to a disability retirement to be matured and thus survive a dismissal for cause.” (Smith at pp. 206–207.)

Applying Haywood and Smith in Vandergoot, the CALPERS Board concluded that, when an employee settles a pending termination for cause and agrees not to seek re-employment, this is “tantamount to a dismissal,” thus precluding a disability retirement. Vandergoot involved an employee fired for cause and prohibited from reinstatement under a settlement agreement, similar to Martinez here. In reaching this decision, the Board there explained that “Haywood makes it clear that a necessary requisite for disability retirement is the potential reinstatement of the employment relationship … . Such is not possible here.” The employee’s severed relationship and preclusion from reinstatement under the settlement agreement, declared the Board, were circumstances “wholly inconsistent with the policy behind and rationale for disability retirement.” The Board also concluded that Martinez did not have a matured right to a disability retirement, the exception permitted by Smith.

Observing that “[a] long-standing principle is that “the Board’s interpretation of the Public Employees Retirement Law is accorded great weight unless clearly erroneous,”[6] the Court explained that Vandergoot was designated as a precedential decision because the Board believed it had “a significant legal or policy determination of general application that is likely to recur.”[7] Here, Martinez was prohibited from returning to her former job per the terms of her settlement after she agreed to voluntarily resign and never thereafter apply for or accept employment with DSS. The Court determined that “[f]rom this perspective, Vandergoot is eminently logical: resignation in these circumstances does indeed appear to be ‘tantamount to a dismissal,’” thus precluding a disability retirement pursuant to Haywood. The First District therefore refused to deny Vandergoot’s standing as precedent and applicability here. The First District accordingly affirmed the judgment denying the writ of mandate.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 19, available at www.jones-mayer.com.


District Court declares California law prohibiting the possession and use of gun magazines with more than ten rounds unconstitutional.

Duncan v. Becerra, 2019 U.S. Dist. LEXIS 54597 (S.D. Cal. Mar. 29, 2019)

Facts: In November 2016, California citizens approved Proposition 63. Proposition 63 amended California Penal Code section 32310 to prohibit a citizen from acquiring and keeping a firearm magazine that is able to hold more than 10 rounds.[8] For all firearms, California law declares acquisition and possession of large-capacity magazines (“LCMs”), defined as magazines able to hold more than ten rounds, a crime pursuant to Section 32310.

Section 32310(c) makes simple possession of a magazine holding more than 10 rounds an infraction. Acquiring a magazine holding more than 10 rounds in California by importing, buying, borrowing, receiving, or manufacturing the magazine is now a misdemeanor or a felony under Section 32310(a). The same provision states that “any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170”. Under the subsection’s provision, punishment may be either a misdemeanor or a felony. The District Court commented that the provision lacked any qualifying language; “all forms of possession are summarily prohibited,” whether “carrying a loaded assault rifle while walking down Main Street” or “storing large-capacity magazines in a locked safe at home.”

The State defended the prohibition on such magazines, asserting that mass shootings are an urgent problem and that restricting the size of magazines a citizen may possess is part of the solution. While the District Court acknowledged that mass shootings are tragic, the Court also explained that they are “exceedingly rare.” Meanwhile, “robberies, rapes, and murders of individuals are common, but draw little public notice.” The Court cited a number of California crime statistics and specific incident examples that the Court said illustrated a need for individual self-defense and the use of magazines with a capacity of more than 10 rounds.

Held: The United States District Court for the Southern District of California explained that the Second Amendment protects a person’s right to keep and bear firearms. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Court stated that “[r]egardless of current popularity, neither a legislature nor voters may trench on constitutional rights. ‘An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity.’” (quoting Silveira v. Lockyer, 312 F.3d at 1091.)

The Court further explained that the United States Supreme Court, in the seminal case District of Columbia v. Heller,[9]established a simple Second Amendment test in “crystal clear language … a test that anyone can understand. The right to keep and bear arms is a right enjoyed by law-abiding citizens to have arms that are not unusual ‘in common use’ ‘for lawful purposes like self-defense.’” (Id., 554 U.S. at 624.) The Court stated Heller’s test “is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are ‘yes,’ the test is over. The hardware is protected.” Under Heller, lawful purposes include, among other purposes, self-defense within the home.[10]The Court also noted that, because “magazines are ‘arms’ within the meaning of the Second Amendment,”[11] the same analytical approach is applied to both firearms and the ammunition magazines designed to make firearms function.

In applying the Heller test to magazines holding more than 10 rounds, the Court cited numerous federal cases declaring such magazines are in common use by law-abiding citizens for lawful purposes. The Court observed that “these magazines number in the millions” and are lawful in at least 41 states and under federal law. Finding therefore that LCMs were used by law-abiding citizens in common use for lawful purposes like self-defense and recreation, the Court concluded that a magazine able to hold more than 10 rounds passes the Heller test and is protected by the Second Amendment, adding that “the size limit directly impairs one’s ability to defend one’s self.”

The Court also explained that criminalization of a citizen’s acquisition and possession of magazines able to hold more than 10 rounds “hits directly at the core of the right of self-defense in the home. It is a complete ban on acquisition. It is a complete ban on possession. It is a ban applicable to all ordinary law-abiding responsible citizens. It is a ban on possession that applies inside a home and outside a home.” The Court explained that “Section 32310 strikes at the core of the Second Amendment right of self-defense and severely burdens that right, triggering strict scrutiny. Because the statute imposes a broad prophylactic ban that is the opposite of a regulation using the least restrictive means to achieve a compelling interest, Section 32310 fails constitutional muster under the test of strict scrutiny.” The Court observed that Section 32310 imposed such a severe restriction on the core right of self-defense of the home such that it amounted to a destruction of the right and is unconstitutional under any level of scrutiny.[12] The Court added that, even under the more lenient standard of intermediate scrutiny, Section 32310 was “a poor fit to accomplish the State’s important interests.”

The Court concluded that Section 32310 directly infringed upon Second Amendment rights by “broadly prohibiting common firearms and their common magazines holding more than 10 rounds, because they are not unusual and are commonly used by responsible, law-abiding citizens for lawful purposes such as self-defense. And ‘that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.’ Friedman v. City of Highland Park, 136 S. Ct. 447, 449[](2015).” The Court concluded that the law failed the Heller test because “it criminalizes a law-abiding citizen’s possession of a common magazine that is used for lawful purposes and prohibits its use for self-defense in and around the home.” It also failed the strict scrutiny test because the law was not narrowly tailored because it “strikes at the core of the inalienable Constitutional right and disenfranchises approximately 39 million state residents.” Accordingly, the Court granted Plaintiffs’ motion for summary judgment, declared Section 32310 unconstitutional and enjoined its enforcement.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 14, available at www.jones-mayer.com.


Ninth Circuit Court of Appeals affirms much of District Court decision not to enjoin enforcement of California immigration statutes AB 450, AB 103, and SB 54.

United States v. California, 2019 U.S. App. LEXIS 11275 (9th Cir. Apr. 18, 2019)

Facts: “The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012). The Immigration and Nationality Act (“INA”) is a federal statutory scheme for the regulation of immigration and naturalization, including the removal of noncitizens. The Immigration Reform and Control Act of 1986 (“IRCA”) prohibits employers from knowingly hire or employing aliens without proper work authorization.[13] Under the IRCA, employers must keep documentation of authorized employment, and make that documentation available for inspection by federal officers.[14]

California enacted three laws with the express goal of protecting immigrants from an expected increase in federal immigration enforcement actions: AB 450, which requires employers to alert employees before federal immigration inspections; AB 103, which imposes inspection requirements on facilities that house civil immigration detainees; and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities.

In March 2018, The United States of America sought a preliminary injunction, arguing that the California laws violated the doctrine of intergovernmental immunity and the doctrine of conflict preemption. The doctrine of intergovernmental immunity comes from the Supremacy Clause, U.S. Const., art. VI, which declares that “the activities of the Federal Government are free from regulation by any state.” “Accordingly, state laws are invalid if they regulate the United States directly or discriminate against the Federal Government or those with whom it deals.’” Boeing Co. v. Movassaghi, 768 F.3d 832, 839 (9th Cir. 2014) (internal citations omitted).

Under the doctrine of conflict preemption, state laws are preempted when they conflict with federal law. This includes cases where compliance with both federal and state regulations is a physical impossibility, and those instances where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The latter instances constitute “obstacle preemption.” The United States Supreme Court has emphasized that a “high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act.” Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 607 (2011).

As discussed in detail in our earlier Client Alert,[15] the District Court granted the United States’ motion for a preliminary injunction in part and denied it in part. The District Court concluded that the United States was likely to succeed on the merits as to AB 450’s provision that restricted employers’ voluntary consent to immigration enforcement officers and as to AB 450’s reverification provision, but did not find any merit to the United States’ arguments against AB 450’s employee-notice provisions. The District Court concluded that AB 103 was not invalid under the intergovernmental immunity doctrine because of what that court deemed a minimal burden, and was not invalid under preemption because there was no congressional intent found to preclude States from oversight over in-State detention facilities. The District Court determined SB 54’s challenged provisions were not rendered unlawful by obstacle preemption because “refusing to help [wa]s not the same as impeding,” and because preemption was not otherwise effected because of the Tenth Amendment and anticommandeering principles. The United States appealed.

Held: The Ninth Circuit Court of Appeals explained that it reviewed a district court’s denial of a preliminary injunction for abuse of discretion, and proceeded to consider each of California’s challenged statutes.

AB 450

The District Court enjoined the AB 450 provisions regarding employers who provide consent to federal investigations or reverify the employment eligibility of current employees, but did not enjoin the provisions that requires employers to alert employees before federal immigration inspections. Under the IRCA, employers must retain documentation regarding employees’ work authorizations, and to make that documentation available for inspection by federal officers.[16] Employers are to be given notice of at least three business days before such inspections.[17] Notice to employees is not required under the federal statutes. Under AB 450, however, employers are required to inform their employees of upcoming inspections within 72 hours of receiving notice,[18] and to share any documents providing the results of the inspection with any employees who might lack work authorization.[19]

The United States argued that AB 450 discriminated against federal immigration enforcement operations and therefore violated intergovernmental immunity. The United States said AB 450’s employer-to-employee notice requirements did not apply to inspections potentially conducted by any other entity. The Court agreed with California that “the mere fact that the actions of the federal government are incidentally targeted by AB 450 does not mean that they are incidentally burdened, and while the latter scenario might implicate intergovernmental immunity, the former does not.”

The Ninth Circuit explained that “a state ‘does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them.’” Washington v. United States, 460 U.S. 536, 544-45 (1983). The Ninth Circuit explained that “AB 450 does not treat the federal government worse than anyone else; indeed, it does not regulate federal operations at all.” Thus, the Court of Appeals determined that the District Court did not err in concluding that AB 450’s employee-notice provisions did not violate the doctrine of intergovernmental immunity.

The United States also argued that AB 450’s employee-notice provisions were subject to conflict preemption. The Ninth Circuit concluded that there was no irreconcilable conflict between AB 450’s employee-notice provisions and federal immigration law that would invoke conflict preemption.

AB 103

The United States argued intergovernmental immunity and obstacle preemption precluded AB 103 provisions that authorized the California Attorney General to inspect detention facilities that house civil immigration detainees. Regarding intergovernmental immunity, the Ninth Circuit noted a distinction between those provisions of AB 103 that duplicated preexisting inspection requirements imposed on state and local detention facilities and any that imposed an additional burden exclusively on the federal government.

The Ninth Circuit rejected the District Court’s use of a de minimis exception to the intergovernmental immunity doctrine where the District Court found that, although an additional burden was imposed by certain AB 103 provisions, the burden was so minimal as to preclude the doctrine’s application. The Ninth Circuit Court explained that, in accordance with the Supreme Court’s recent decision in Dawson v. Steager,[20] that any economic burden that is discriminatorily imposed on the federal government is unlawful. AB 103, under provisions codified in Cal. Gov’t Code section 12532(b)(1)(C), requires inspectors to examine the circumstances surrounding the apprehension and transfer of immigration detainees. The Ninth Circuit found this “novel requirement” distinct from any other inspection requirements imposed by California law, and so additionally burdened federal operations exclusively. Accordingly, the Court reversed the District Court’s denial of the preliminary injunction as to Section 12532(b)(1)(C).

Regarding AB 103’s due process provisions under Cal. Gov’t Code section 12532(b)(1)(B), California argued that the provisions were duplicative because California’s Attorney General interpreted “due process” in this context as limited to “conditions of confinement that affect detainees’ ability to access courts—such as the adequacy of the facility’s law library, the availability of unmonitored communications with counsel, and the ability to send and receive mail.” Accepting this “limited construction,” the Ninth Circuit concluded that AB 103’s due process provision “likely does not violate the doctrine of intergovernmental immunity,” and affirmedthe District Court’s denial of a preliminary injunction as to Section 12532(b)(1)(B).

The Ninth Circuit did not find conflict preemption applied because no relevant federal provisions demonstrated any intent, much less the “clear and manifest purpose” required under preemption analysis, that Congress intended to supersede “the historic police powers of the States”[21] to ensure the health and welfare of inmates and detainees in facilities within its borders. AB 103 did not actively frustrate the federal government’s ability to discharge its operations as in the cited cases relied upon by the United States.

SB 54

SB 54 limits the cooperation between state and local law enforcement and federal immigration officials. The United States argued that SB 54’s provision prohibiting California law enforcement agencies from transferring a person to immigration authorities unless authorized by judicial probable cause determination or a judicial warrant unlawfully obstructed federal immigration law enforcement. The United States contended that because the INA permits the United States Attorney General to issue a warrant to arrest or detain an alien, SB 54 incorrectly claimed for California the authority to demand a judicial warrant that Congress chose not to require. Rejecting the argument, the Ninth Circuit explained that nothing in the federal immigration regulatory scheme that the United States cited required States to alert federal agents before releasing a state or local inmate. The Court thus found SB 54 did not directly conflict with any INA or other federal immigration provisions requiring state actions, because there were no such state obligations imposed by federal law.

However, the Court explained this did not resolve the issue of obstacle preemption. The United States claimed that SB 54 required federal officers to effectively stake out jails to detain aliens upon their release from state custody, and do so indefinitely since federal officers would not be aware when any given alien would be released under the law. The District Court concluded that California’s decision not to assist federal immigration enforcement was not an “obstacle” to that enforcement effort. The Ninth Circuit agreed, explaining that, under the Tenth Amendment and other constitutional provisions, “the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.” Printz v. United States, 521 U.S. 898, 925 (1997). This concept is known as the anticommandeering rule. The Court explained that “federal law provides state and localities the option, not the requirement,of assisting federal immigration authorities. SB 54 simply makes that choice for California law enforcement agencies.”

SB 54’s information-sharing restrictions prohibit state and local law enforcement agencies from providing information regarding a person’s release date from incarceration or other personal information. The United States contended that these restrictions conflicted with 8 U.S.C. section 1373, which provides that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from,

[the Department of Homeland Security]

information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” SB 54 expressly permits the sharing of such information, and so would seem to avoid any conflict with Section 1373.

Lastly, the Ninth Circuit addressed California’s argument that the three other factors for determining whether to issue a preliminary injunction—irreparable harm, the balance of the equities, and the public interest—provide an alternative basis for affirming the district court’s denial of a preliminary injunction. The Court considered this line of reasoning only as to AB 103’s provision that imposed an impermissible burden on the federal government because the Court had already determined that the challenges to AB 450 and SB 54 by the United States were unlikely to succeed on their merits. For AB 103’s burdensome inspection provision, the Ninth Circuit stated that neither the California Attorney General nor the United States showed any assessment of the actual costs imposed by the section or “any quantification whatsoever of the enactment’s burden.” Therefore, the Court did not affirm but remanded on this issue to have the District Court reexamine the balance of equities upon consideration of the evidence in the record.

In summation, the Ninth Circuit Court of Appeals concluded that the District Court correctly determined that the United States was unlikely to succeed on the merits of its challenges to AB 450’s employee-notice provisions and SB 54, and therefore affirmed its denial of a preliminary injunction as to these laws. The Ninth Circuit also affirmed the denial as to those provisions of AB 103 that duplicate preexisting inspection requirements, but reversed as to issues pertaining to Section 12532(b)(1)(C) because it both discriminated against and impermissibly burdens the federal government. The Court remanded on this issue to encourage the lower court to re-examine AB 103’s burdensome provision as it pertained to the balance of equities.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 18, available at www.jones-mayer.com.


Because defendant had not yet been sentenced at the time Proposition 47 became effective, its ameliorative provisions applied directly in trial and sentencing; however, evidence sufficient to support defendant’s felony conviction under Vehicle Code section 10851 based on a theory of post-theft driving.

People v. Lara, 6 Cal. 5th 1128 (2019)

Facts: Proposition 47 (“the Safe Neighborhoods and Schools Act”), effective November 5, 2014, reduced certain felony offenses to misdemeanors. Also under Proposition 47, eligible defendants serving felony sentences as of the proposition’s effective date can petition for retroactive recall of sentence and request resentencing. (Penal Code section 1170.18(a), as amended by Stats. 2016, ch. 767, section 1.) This resentencing provision is more restrictive than initial sentencing under the statute would be, including by instructing that relief be denied if the trial court determines that resentencing the defendant “would pose an unreasonable risk of danger to public safety.” (Penal Code 1170.18 (b).)

Henry Arsenio Lara III (“Lara” or defendant) was found driving a stolen 2000 Honda Civic in August 2013. Evidence at trial showed the car was stolen from the owner’s house on August 8 or 9. Police found the vehicle parked at a known dumping ground for stolen vehicles on August 14 and began surveillance. On August 15 in the same area, police observed the car being driven, stopped the car, and arrested Lara as its driver and sole occupant. The car showed signs of a break-in. No evidence was presented, however, that directly implicated Lara in the vehicle theft itself. Lara was charged in January 2015 with unlawfully taking or driving a vehicle under Vehicle Code section 10851(a) and receiving the same stolen vehicle under Penal Code section 496d(a). Thus, Lara committed his crime prior to Proposition 47’s November 5, 2014 effective date, but he had not yet been sentenced, or even charged, as of the measure’s effective date.

The trial court instructed the jury only on unlawful driving theory of liability, not the unlawful taking portion of Section 10851. The prosecutor correspondingly argued only the unlawful driving theory to the jury. The jury acquitted on the receiving charge, and found Lara guilty of “driving a vehicle without permission” as charged under Section 10851. Lara was sentenced to three years in prison for violating the section. Sentence enhancements for prior convictions and prison terms increased Lara’s sentence to a total of ten years imprisonment.

On appeal, Lara argued that Proposition 47’s amending of Penal Code section 490.2 applied and meant his felony Section 10851 conviction must be reduced to a misdemeanor. Section 490.2(a) says that obtaining any property by theft where the value of the property is not more than $950 “shall be considered petty theft and shall be punished as a misdemeanor.” Lara said his Section 10851 conviction was a theft crime and the vehicle’s value was never established to be more than $950 (because the jury never determined its value at all). The Court of Appeal concluded that Proposition 47 had no application to a Section 10851 violation, and affirmed. Lara petitioned for review.

Held: The California Supreme Court affirmed the judgment of the Court of Appeal. The Court first addressed whether Penal Code section 490.2, amended by Proposition 47, applied directly in trial and sentencing proceedings without the need for a petition for resentencing under Penal Code section 1170.18. The Court had held in 2018’s People v. DeHoyos [22] that Section 1170.18 offered the exclusive path to relief for defendants serving felony sentences as of the Proposition 47’s effective date, including those whose judgments were on appeal and thus not yet final.

The Court explained that under In re Estrada,[23] an amendatory statute that decreases punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute’s effective date, unless the enacting body “clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent.” The Court noted that Proposition 47 provides resentencing relief to someone serving a sentence as of the November 2014 effective date, but was “simply silent” as to reduction of punishment for a defendant who had not yet been sentenced on its effective date, like Lara here. Under Estrada, therefore, the Legislature could be presumed to intend Proposition 47’s reduced penalties under Section 490.2 to apply directly in trial and sentencing proceedings held after the measure’s effective date, and thus to Lara here. This was so even though Lara’s offense occurred before Proposition 47’s effective date. Thus, the Court found Lara was entitled to initial sentencing conditions under Proposition 47.

The Supreme Court found the Court of Appeal erred in holding Prop. 47 inapplicable to violations of Vehicle Code section 10851, but the Supreme Court found that the Court of Appeal was correct nonetheless in affirming Lara’s conviction on that charge. In 2017, the Supreme Court in People v. Page[24] held that Proposition 47 does apply to violations of Vehicle Code section 10851 that are based on theft of a vehicle. Lara was convicted under the unlawful driving theory of liability, not under a theft basis. The Court explained that a theft-based violation of Section 10851 may be punished as a felony only if the vehicle is shown to have been worth over $950 (as per Penal Code section 490.2), but a violation committed by post-theft driving may be charged and sentenced as a felony regardless of value. Lara’s contention that the evidence did not suffice to support a felony conviction of Section 10851 failed because the evidence amply supported a theory of post-theft driving: Lara was apprehended driving the stolen car a week or less after the vehicle was stolen; he did not have the owner’s consent; and the circumstances suggested he intended to keep the vehicle from the owner for some period of time.

Lastly, the Supreme Court found that any instructional error by the trial court to the jury harmless beyond a reasonable doubt and determined that a rational jury would have rendered the same verdict had it received a complete instruction. The Supreme Court of California accordingly affirmed.

[1] People v. Robles, 23 Cal.4th 789, 795 (2000).

[2] 67 Cal.App.4th 1292 (3rd Dist. 1998).

[3] 120 Cal.App.4th 194 (3rd Dist. 2004).

[4] CalPERS Precedential Dec. No. 12-01 (2013).

[5] Beckley v. Board of Administration etc., 222 Cal.App.4th 691, 697 (1st Dist. 2013).

[6] City of Fremont v. Board of Administration, 214 Cal.App.3d 1026, 1033 (3rd Dist. 1989).

[7] A state agency “may designate as a precedent decision a decision or part of a decision that contains a significant legal or policy determination of general application that is likely to recur.” Cal Gov Code section 11425.60.

[8] For more information on the procedural history of this case and Section 32310, see Client Alert Vol. 32 No. 17.

[9] 554 U.S. 570 (2008).

[10] McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).

[11] Ass’n of N.J. Rifle & Pistol Clubs v. A.G. N.J., 910 F.3d 106, 116 (3rd Cir. 2018).

[12] See Jackson v. City & Cty. of S.F., 746 F.3d 953, 961 (9th Cir. 2014); Heller,554 U.S. at 629.

[13] 8 U.S.C. section 1324a(a)(1)-(2).

[14] 8 U.S.C. section 1324a(b)(3).

[15] See Client Alert Vol. 33 No. 21 for more information.

[16] 8 U.S.C. section 1324a(b)(3).

[17] 8 C.F.R. section 274a.2(b)(2)(ii).

[18] Cal. Lab. Code section 90.2(a)(1).

[19] Cal. Lab. Code section 90.2(b)(1)-(2).

[20] 139 S. Ct. 698 (2019).

[21] Arizona v. United States, 567 U.S. 387, 400 (2012), citing.Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)

[22] 4 Cal.5th 594 (2018).

[23] 63 Cal.2d 740 (1965).

[24] 3 Cal.5th 1175 (2017).