CPOA Case Summaries – August 2016

CONSTITUTIONAL LAW 

Police officers violated Siebert v. Missouri by deliberately employing a two-step interrogation technique and not taking appropriate curative measures.

Reyes v. Lewis, 2016 U.S. App. LEXIS 15146 (9th Cir. Aug. 17, 2016) (amending and superseding Reyes v. Lewis, 798 F.3d 815 (9th Cir. 2015))

Facts: Following a January 11, 2006 shooting that resulted in the death of Derek Ochoa, a senior at La Sierra High School in Riverside County, Riverside Police Department (RPD) homicide detectives questioned Adrian Reyes, a fifteen-year-old freshman at La Sierra High School. Prior to the shooting, Reyes had been assaulted by members of a Riverside gang after he told them he was from “Delhi,” an Orange County gang. During the questioning about the assault, Reyes acknowledged that he had known Ochoa and that he knew Delhi was a group from Santa Ana.

On the morning of February 9, 2011, a SWAT team executed a search warrant at Reyes’s aunt’s home, where Reyes was living. They handcuffed Reyes and searched the house. In Reyes’s room, they found papers with “Delhi” written in large block letters. After the search, Reyes was released from handcuffs. RPD Officer James Brandt told Reyes he was not under arrest, but that he wanted to ask him some questions at the police station. Reyes agreed to go, and was driven to the RPD station, without any member of his family accompanying him.

The officers questioned Reyes for approximately two hours. They told him that he could stop the interview at any time by letting them know. The officers did not provide any Miranda v. Arizona[1] warnings. Despite the officers’ pressing Reyes and making false statements relating to witness statements and evidence recovered, Reyes maintained that he did not know anything. Reyes made two requests for the officers to stop asking him questions, but Brandt responded that he would not stop asking him questions. Eventually, Brandt terminated the interview.

The next day, Brandt and another RPD officer picked Reyes up from his mother’s house and took him to the San Bernardino County Sheriff station for a polygraph test. There was no written consent from an adult to administer the test, but Brandt testified at the preliminary hearing that Reyes’s mother gave permission over the phone. Robert Heard of the San Bernardino County Sheriff’s Department administered the polygraph test. Heard did not provide Miranda warnings. Reyes had difficulty filling out a form Heard gave him because he did not know his zip code or height and weight. He also had difficulty with the written consent form, so Heard explained terms such as “duress and coercion” and “immunity” in simpler terms. He also explained the release statement contained in the consent form. Reyes signed the consent form.

After administering the test, Heard told Reyes that he failed the test and pressed him to give details about what he had done. Reyes repeated that he did not know what happened, asked Heard not to ask any questions, and then asked him to call the detectives. The detectives came to the room and began interviewing Reyes. They did not provide Miranda warnings. After some questioning, Reyes stated that Ochoa had a gun and that he was running toward the car that Reyes was in and reaching for his gun. He said he was scared and shot Ochoa. Reyes’s statement that he shot Ochoa came early in the interview, on the seventh page of the transcript, but the officers continued to question him for thirty-five more pages.

Brandt drove Reyes back to the RPD station where he and another officer had interviewed Reyes the previous day. When they arrived, Reyes was put in an interview room. At the beginning of the interview, Brandt stated, “…OK, just to clarify stuff. Alright, so I wanna talk to you again, but because you’ve been sitting in that room and the door was locked and you’re not free to leave, I wanna read you your rights, OK? And then ask you some questions, OK?” He then read Reyes his Miranda warnings, and asked, “Do you understand each of these rights that I’ve explained to you? Yeah. OK. Can we talk about the stuff we talked to you about earlier today? Is that a yes?” Reyes stated, “Yeah.”

Upon further questioning, Reyes repeated his confession. The total elapsed time from when Reyes was picked up that morning until the conclusion of the interview at the RPD station was between five and six hours, with approximately four hours spent at the San Bernardino County Sheriff’s station and between forty minutes and one hour at the RPD station.

Reyes and his cousin were charged with first degree murder in California Superior Court. Reyes moved to suppress his confession as having been obtained in violation of Miranda. The trial court judge concluded that he was in custody when he made his unwarned post-polygraph statement at the San Bernardino County Sheriff’s station, requiring suppression. However, the judge refused to suppress the post-warning confession obtained at the RPD station.

At trial, there was inconsistent evidence about the identity of the shooter. Besides Reyes’s post-warning confession, the evidence pointed to his cousin. The jury found Reyes guilty of first degree murder with gang and firearm enhancements, and the judge sentenced Reyes to fifty years to life in prison.

Reyes appealed, citing Missouri v. Seibert.[2] The Court of Appeal affirmed, concluding that because Reyes’s unwarned statements were voluntary, his post-warning statements at the RPD station were necessarily likewise voluntary. Reyes filed a state habeas petition at the same time he filed his direct appeal. The California Supreme Court denied both Reyes’s direct appeal and his habeas petition. Reyes filed a federal habeas petition, which was denied by the federal district court. Reyes appealed.

Held: The officers violated Seibert by deliberately employing a two-step interrogation technique and failing to take appropriate curative measures, and therefore Reyes’s post-warning confession should have been suppressed. Reviewing the plurality’s opinion in Seibert in connection with the narrower concurring opinion of Justice Kennedy, the Ninth Circuit explained that the clearly established rule pursuant to Seibert is that, when officers employ the two-step technique employed in Seibert,[3] and if insufficient curative measures are taken to ensure that later Miranda warnings are genuinely understood, any warned statement thereby obtained must be suppressed, even if the statement was voluntary.

Looking to its decision in United States v. Williams,[4] the Court explained that evidence of deliberateness in a Seibert inquiry can be either objective or subjective, noting that the “most plausible” reason for delaying Miranda warnings until after a suspect has confessed is an illegitimate one, which is the interrogator’s desire to weaken the effectiveness of the warning. Absence of direct evidence of subjective intent is not dispositive, the Court explained, given that the intent of an officer will rarely be candidly admitted. The Court also noted the nonexhaustive list of probative objective evidence of deliberateness it outlined in Williams, including the timing, setting, and completeness of the pre-warning interrogation, the continuity of police personnel and the overlapping content of the pre- and post-warning statements.

The Court concluded that, based on the objective evidence in the case, Brandt and his fellow officers deliberately employed the two-step interrogation technique employed in Seibert. It noted that Reyes first confessed in the unwarned custodial interrogation conducted at the San Bernardino Sheriff’s station, after he was told that he failed the polygraph test. The Court found that the unwarned interrogation as well as the unwarned interrogation the previous day at the RPD station, were similar to the interrogation in Seibert because they were “systematic, exhaustive, and managed with psychological skill.” Reyes provided essentially the same information in the warned interrogation at the RPD station that followed.

The Court also found that Brandt did not take curative measures to ensure that Reyes understood the importance and effect of Miranda warnings and of the Miranda waiver, noting all of the circumstances leading to Brandt finally giving Reyes his Miranda warnings. The Court noted that an experienced officer in Brandt’s position would have understood that to a reasonable person not trained in the law, let alone a fifteen-year-old high school freshman, Brandt’s reasons of “just to clarify stuff” and that he wanted to “read [him his] rights” were barely an effective means of conveying the fact that the warning he was about to give could mean the difference between serving life in prison and going home that night. Thus, given the facts, the Court found that the psychological, spatial, and temporal break between the unwarned and warned interrogations was not enough to cure the Miranda violation.

Because the officers deliberately employed a two-step interrogation technique without taking appropriate curative measures, the officers violated Seibert, and Reyes’s post-warning confession should have been suppressed.

CALIFORNIA CRIMINAL LAW

  1. Penal Code section 424 applies only to those public officers charged with the receipt, safekeeping, transfer, or disbursement of public moneys. A person is so charged as long as he or she exercises a degree of material control over public funds that amounts to being charged with such authority.

People v. Hubbard, 63 Cal. 4th 378 (2016)

Facts: Jeffrey Hubbard served as the superintendent of the Beverly Hills Unified School District (the “District”) from July 1, 2003 to June 30, 2006. As superintendent, he was the chief executive officer of the District. His duties included overseeing various departments of the District, including human resources, business and accounting. Pursuant to his employment contract, he had the responsibility for ensuring successful policy implementation of budget and business affairs as well as the responsibility for taking the lead on financing for school facilities.

While Hubbard was superintendent, he wrote two memoranda in his official capacity regarding the compensation of Karen Christiansen, who worked as the director of planning and facilities for the District. In the first memorandum, dated September 29, 2005, he directed that Ms. Christiansen’s monthly automobile allowance be increased from $150 per month to $500 per month. In the second memorandum, dated February 6, 2006, Hubbard directed that Ms. Christiansen receive a $20,000 stipend.

The increase to the automobile allowance and the stipend required the District’s board of education (“Board”) approval, as the superintendent lacked unilateral authority to order either payment. The Board would discuss matters such as employee compensation in closed session, and then decisions on such matters would be ratified by the Board in open session. For the Board to approve a change in an employee’s compensation, the superintendent provided the Board with a personnel report prepared by the human resources department as part of meeting materials. Meeting materials from meetings held around the times of the automobile allowance and stipend did not contain any mention of the automobile allowance or stipend.

In January 2012, the Los Angeles County District Attorney charged Hubbard with three counts of misappropriating public funds in violation of Penal Code section 424(a)(1).[5] A jury found Hubbard guilty of the first two counts and not guilty on the third. Hubbard appealed his convictions. The Court of Appeal reversed, concluding that Hubbard was not a “person charged with the receipt, safekeeping, transfer, or disbursement of public moneys” and that Hubbard lacked the formal authority to approve the payments to Christiansen. Since he lacked authority to unilaterally approve the payments to Christiansen, it found that he could not be criminally liable pursuant to Penal Code section 424.

The California Supreme Court granted review of the case.

Held: Penal Code section 424 applies only to those public officers charged with the receipt, safekeeping, transfer, or disbursement of public moneys. A person is so charged as long as he or she exercises a degree of material control over public funds that amounts to being charged with such authority. In reaching its conclusion, the Supreme Court applied the rules of statutory interpretation. It looked first to the plain language of Penal Code section 424. The Attorney General argued that the statute applied to all public officers, whereas Hubbard argued that it applied only to those officers charged with the receipt, safekeeping, transfer, or disbursement of public moneys. After reviewing the text of the statute, the Court concluded that Hubbard’s interpretation most closely aligned to what the Court discerned to be the legislative purpose in enacting section 424, which was protecting the public treasury and holding individuals in a position to put public funds at risk accountable.

The Court also looked to the statutory context, its prior decisions involving section 424, and the legislative history, and found that the interpretation was firmly rooted in section 424’s text and purpose as well as the Court’s precedent. The Court thus held that, for a public officer to be convicted under Penal Code section 424, he or she must be charged with the receipt, safekeeping, transfer, or disbursement of public moneys.

The Court further explained that a person is charged with the receipt, safekeeping, transfer, or disbursement of public moneys so long as he or she exercises a degree of material control over public funds that amounts to being charged with such authority. The Court noted that the degree of material control depends on actual function rather than formal title, and explained that it is essential that the fact finder examine a person’s actual and formal responsibilities as they relate to public funds in determining whether the person has the degree of material control over public funds that will amount to being charged with such authority.

Applying its standard to Hubbard, the Court found that substantial evidence supported his convictions, noting that his duties included overseeing departments related to expenditure of public funds, implementing policies relating to budgeting and business affairs, and raising money for school facilities. It also noted that Hubbard was entrusted with bringing expenditures to the Board for approval and then ensuring District funds were spent pursuant to the Board’s directions, which entailed a material degree of discretion and control over how public funds were allocated.

For a more detailed discussion of this case, please see the Client Alert dated August 18, 2016 authored by Keith F. Collins and available at www.jones-mayer.com.

  1. California Highway Patrol ordered to record arrests that lead to release and no charges filed as detentions and to provide certificates of detention pursuant to Penal Code sections 849.5 and 851.6(b).

Schmidt v. California Highway Patrol, 1 Cal. App. 5th 1287 (2d Dist. 2016)

Facts: On May 1, 2011, John J. Schmidt was arrested by the California Highway Patrol (CHP) for driving under the influence. He was booked into the Santa Barbara County (“County”) jail and released later the same day on his own recognizance. He signed a written notice to appear in court. The CHP sent the arrest report to the Santa Barbara County District Attorney’s office, which reviewed the referral and decided not to file charges. The CHP did not provide Schmidt with a certificate describing his arrest as a detention required by Penal Code section 851.6(b),[6] nor did the CHP report the arrest as a detention to the Department of Justice (DOJ).

Schmidt brought a class action suit on behalf of himself and all persons similarly situated seeking a writ of mandate to compel the CHP to comply with Penal Code sections 849.5[7] and 851.6(b), which the CHP does not comply with. The class was certified and the matter proceeded to trial. Following testimony from Schmidt, the Santa Barbara County Senior Deputy District Attorney that had declined to prosecute, and a records supervisor for the County, the trial court found that Schmidt should have been issued certificate of detention by the CHP. It concluded that “released” as used in Penal Code sections 849.5 and 851.6(b) means released from custody, which may include a notice to appear in court; that “accusatory pleading” may include a notice to appear, but only when filed with the court; and that “filed” means filed with a court, not a prosecuting agency. The trial court issued a writ of mandate ordering, among other things, that the CHP issue certificates of detention to class members, delete references to the action as an arrest from the CHP’s arrest records for each class member and to provide written notice to the DOJ of each class member’s case disposition, and comply with and apply the commands to future arrestees who are arrested by the CHP, released from custody, and who do not have an accusatory pleading filed against them in a court of law.

The CHP appealed, arguing that the trial court misinterpreted Penal Code sections 849.5 and 851.6(b).

Held: Because Schmidt was released and no accusatory pleading was filed against him, he was entitled to have his arrest deemed a detention pursuant to Penal Code section 849.5; entitled to a certificate issued by CHP describing the action as a detention pursuant to Penal Code section 851.6(b); and entitled to have his arrest deleted from CHP records and the DOJ and have any such record refer to the arrest as a detention. In reaching its decision, the Second District reviewed the statutes at issue following rules of statutory interpretation. Based on the plain language of the statutes, the Court concluded that a person is “released” when free to leave police custody, whether the person is released on a notice to a appear, their own recognizance, or on bail, and a notice to appear may be an “accusatory pleading” when filed with the court, noting that the ordinary meaning of a pleading is a document filed with the court.

CONCEALED WEAPONS PERMITS – CUSTODIAL DEPUTIES

County should not have required its custodial deputies to obtain permits to carry concealed weapons while off duty because the peace officer exemption of Penal Code section 24540 applies to such deputies when they are off duty.

Stanislaus County Deputy Sheriffs’ Assn. v. County of Stanislaus, 2 Cal. App. 5th 368 (5th Dist. 2016).

Facts: The practice of Stanislaus County (the “County”) is to recognize that a custodial deputy, designated as a “peace officer” by Penal Code section 830.1(c),[8] may carry a concealed firearm while off duty only if that deputy has first obtained a license or a permit to carry a concealed weapon. The County’s practice is to issue each custodial deputy a restrictive identification card, which states that the deputy may only carry a concealed weapon while off duty if that deputy possesses a valid permit to carry a concealed weapon. The Stanislaus County Deputy Sheriffs’ Association (“Association”) challenged the practice as being inconsistent with Penal Code section 25450,[9] which categorically exempts all peace officers listed in Penal Code section 830.1 from the prohibition contained in Penal Code section 25400[10] against carrying a concealed weapon.

After the parties were unable to resolve the dispute through administrative channels, the Association filed a petition for writ of mandate and a complaint for declaratory relief in the trial court in August 2013. Among other things, the Association sought a judicial declaration that custodial deputies may lawfully carry concealed firearms while off duty without the necessity of obtaining a permit to carry a concealed weapon. Relying on a 2002 Attorney General opinion,[11] the County argued in its opposition that, pursuant to Penal Code section 830.1(c), custodial deputies are peace officers with only limited authority and, as such, cease to have peace officer status or authority outside of their particular custodial assignments, which means that custodial deputies, when off duty, are not exempt from Penal Code section 25400.

After oral argument in September 2014, the trial court issued its tentative decision, siding with the County and ordering that the petition be denied in its entirety. The tentative decision became final and the trial court entered judgment in favor of the County in January 2015. The Association appealed.

Held: The County should not have required its custodial deputies to obtain permits to carry concealed weapons while off duty because the peace officer exemption set forth in Penal Code section 25450, which by its terms applies to custodial deputies described in Penal Code section 830.1(c), applies to such deputies when they are off duty.  In reaching its decision, the Fifth District explained that the question before it involved the interplay of several related statutes of the Penal Code, including sections 25400, 25450, and 830.1(c). Specifically, the primary issue was whether the peace officer exemption set forth in Penal Code section 25450 ceases to apply to custodial deputies when they are off duty.

Applying the rules of statutory interpretation, the Court first looked at the statute itself, pointing out that a “conspicuous” feature of section 25450 is that some of the exempt persons described in the statute are simply identified as a category or class of peace officers, such as in subsections (a) and (b), while other persons referred to are required to be acting in the scope of a specific duty or activity in order for the exemption to apply, such as in subsections (e) and (f). Given section 25450(a)’s reference to “honorably retired” peace officers, who are not engaged in present, on-duty assignments and therefore the exemption applies to them as individuals, the Court observed that the Legislature seemed to have intended to benefit section 830.1 peace officers, including those honorably retired from such service, without imposing further restrictions on the exemption such as on duty, off duty or scope of authority. Also reviewing Orange County Employees Assn., Inc. v. County of Orange, [12] the Court also noted there was a pattern that reflected that, where the Legislature wishes to restrict or qualify the scope of the peace officer exemption with respect to a particular classification of peace officer, it does so expressly, either in the exemption statute itself or by explicitly addressing the matter of carrying firearms within the applicable provision of Chapter 4.5 of the Penal Code.[13]

Looking at Penal Code section 830.1(c), the Court presented two questions. First, whether section 830.1(c) explicitly restricts or qualifies the peace officer exemption granted to custodial deputies under section 25450(a). Second, whether section 830.1 expressly addresses the carrying of firearms, whether on or off duty. Looking at the plain language of the statute as well as the legislative history, including committee reports, the Court concluded that the statute did neither. After looking at legislative committee reports, the Court noted that such reports strongly suggested that the Legislature, in declaring custodial deputies to be peace officers under Penal Code section 831(c), understood and intended that one of the effects would be that such custodial deputies would be able to carry a concealed weapon while off duty without the requirement that they obtain a separate permit from the sheriff. Disagreeing with the County’s argument to the contrary, the Court also found that section 830.1(c) stated without any qualification that a custodial deputy is a peace officer, and then delineates the scope of authority. It found that nothing in that section’s description of custodial deputies’ scope of authority as peace officers indicated that they lost their status as peace officers entirely while they were off duty.

The Court emphasized again the pattern of the Legislature in this specific statutory scheme to, when it wants, limit the application of the peace officer exemption with respect to a particular category or classification of peace officer, it does so explicitly. Since that was not done in Penal Code section 830.1(c), the Court found no authorization to find such limitation by implication. Thus, the Court held that the Association was entitled to the declaratory relief it sought.

MEDICAL MARIJUANA

Ninth Circuit concludes that Senate appropriations rider prohibits DOJ from spending funds for the prosecution of individuals who engaged in conduct that was permitted by their states’ medical marijuana laws and who fully complied with such laws.

United States v. McIntosh, 2016 U.S. App. LEXIS 15029 (9th Cir. 2016)

Facts: Appellants in California and Washington were indicted for various violations of the Controlled Substances Act[14] based on their marijuana-related activities. They sought to dismiss their indictments or enjoin their criminal prosecutions on the grounds that Department of Justice (DOJ) was prohibited from spending funds to prosecute them pursuant to a 2014 congressional appropriations rider.

The rider provided that, “None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of … California, … Washington, … to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The rider was enacted in a December 2014 omnibus appropriations bill funding the government through September 2015. In December 2015, Congress enacted a new appropriations act, which appropriated funds through September 30, 2016 and included essentially the same rider in section 542 (“§ 542”).

The district courts denied the motions, and Appellants filed interlocutory appeals, which were consolidated by the Ninth Circuit.

Held: Section 542 prohibits the federal government from preventing the implementation of the specific rules of state law that authorize the use, distribution, possession, or cultivation of medical marijuana. In reaching its decision, the Ninth Circuit applied the rules of statutory interpretation to § 542.  Giving the terms of the statute their ordinary meaning, it determined that § 542 prohibits the DOJ from spending money on actions that prevent states with medical marijuana laws from giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana. The Court explained that, at minimum, § 542 prohibits the DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by state medical marijuana laws and who fully complied with such laws. As such, the DOJ is not in violation of § 542 if it prosecutes individuals who do not strictly comply with state law conditions relating to the use, distribution, possession, or cultivation of medical marijuana, as such conduct is unauthorized.

The Court remanded the cases to the district courts, noting that, if DOJ desired to continue the prosecutions, Appellants were entitled to evidentiary hearings to determine whether or not they strictly complied with state law provisions relating to the use, distribution, possession, and cultivation of medical marijuana.

For a more detailed discussion of this case, please see Client Alert Vol. 31, No. 16 authored by Martin J. Mayer and available at www.jones-mayer.com.

PARKING CITATIONS

Pursuant to Vehicle Code section 40215(a), issuing agency must conduct initial review of contested parking citations and cannot delegate that duty to a private processing agency.

Weiss v. City of Los Angeles, 2 Cal. App. 5th 194 (2d Dist. 2016)

Facts: In March 2012, Cody Weiss received a parking citation for violating Los Angeles Municipal Code section 80.69(c), for exceeding a two-hour posted time limit. Weiss timely contested the citation by filing an online statement claiming that his vehicle was not parked in excess of two hours and requested dismissal of his case. The City contracts with Xerox Business Services, LLC (Xerox) to act as its processing agency. As part of its duties, the City delegated to Xerox the duty under Vehicle Code section 40215(a)[15] to conduct the initial review of contested citations. Xerox subcontracts that duty to its Parking Violations Bureau (Bureau), which conducts reviews pursuant to processing rules approved by the City and issues results of initial reviews through one of nearly 100 form letters drafted and approved by the City, on City letterhead.

In April 2012, after Xerox performed the initial review, Weiss was advised that the initial review had been performed and that the citation would not be cancelled. Weiss paid the citation instead of seeking administrative review of the denial. In January 2013, Weiss file a petition seeking a writ of mandate directing the City and Xerox to perform a legally sufficient review, in compliance with Vehicle Code section 40215(a), once an alleged violator exercises his or her right to challenge a parking citation under that statute.

The trial court bifurcated the issues into two phases: first, to consider whether the City’s process, without considering the authority of Xerox, as the processing agency, to perform initial reviews, complied with Vehicle Code requirements for initial reviews; and second, to consider whether Vehicle Code section 40215(a) requires the City, as the issuing agency, to conduct the initial review, rather than its processing agency, Xerox. The trial court concluded that, setting aside the issue of Xerox’s authority to conduct the initial review, the City’s system of initial review complied with requirements of the Vehicle Code.

During the second phase, the court concluded that changes to the statutory scheme in 1995 reflected the Legislature’s intent to place a nondelegable duty to perform the initial review under Vehicle Code section 40215(a) on the City, the issuing agency, and ultimately entered judgment in Weiss’s favor. The court issued a peremptory writ of mandate, ordering the City to conduct the initial review of contested parking citations pursuant to Vehicle Code section 40215(a), and not contract, subcontract, or otherwise delegate its duty to make such initial review decisions to any other entity or processing agency. The City and Xerox timely appealed.

Held: Vehicle Code section 40215(a) requires the City, as the issuing agency, to conduct the initial review of contested parking citations, and does not permit the City to delegate that duty to its processing agency. In reaching its decision, the Second District reviewed relevant portions of the statutory framework governing the issuance, processing, and review of parking citations. It explained that the statutory scheme provides for three potential levels of review: initial review, administrative hearing, and a de novo appeal to the superior court. It noted that Vehicle Code section 40215(a) sets forth the procedure for the initial review; if a person is dissatisfied following the initial review, the person may seek administrative review pursuant to Vehicle Code section 40215(b); and if a person is dissatisfied following an administrative hearing, the person may invoke the third and final review, which is a de novo appeal to the superior court, pursuant to Vehicle Code section 40230(a).

Applying the rules of statutory interpretation to Vehicle Code section 40215(a), the Court first looked at section 40215(a), noting that it provides that a person who wishes to contest a parking citation “may request an initial review of the notice by the issuing agency…” and that, if the issuing agency is satisfied that the violation did not occur, that the registered owner was not responsible for the violation, or that extenuating circumstances make dismissal of the citation appropriate in the interest of justice, “the issuing agency shall cancel the notice of parking violation … . The issuing agency shall advise the processing agency, if any, of the cancellation.” The Court stated that, on its face, the statute seemed clear and unequivocal: that the issuing agency, not the processing agency, is required to conduct the initial review. However, the Court stated that statutes cannot be read in isolation but must be read in the context of the statutory scheme as a whole. And reading Vehicle Code section 40215(a) in light of Vehicle Code section 40200.5(a),[16] the Court found that section 40200.5(a) created an ambiguity.

To resolve the ambiguity, the Court looked to the 1993 and 1995 revisions to a few of the surrounding provisions of the Vehicle Code. It focused its attention on the 1995 changes, which removed review that had previously been within the processing agency’s purview, and placed the responsibility for such review to the issuing agency. The Court found that 1995 changes strongly suggested that the Legislature intended to give sole authority to conduct an initial review to the issuing agency and to prohibit delegation of that duty to the processing agency.

Thus, the Court concluded that the most reasonable construction of the statutory scheme is that section 40215(a) means what it says: the issuing agency must conduct the initial review, and cannot delegate that duty to the processing agency.

[1] 384 U.S. 436 (1966).

[2] 542 U.S. 600 (2004).

[3] In Seibert, a police officer in Missouri conducted an unwarned custodial interrogation of Seibert that was “systematic, exhaustive, and managed with psychological skill,” and the unwarned interrogation produced a confession. The officer gave Seibert a 20-minute coffee and cigarette break, then read Seibert her Miranda warnings and Seibert signed a written waiver. The officer then resumed questioning, reminding Seibert of her pre-warning statements.

[4] 435 F. 3d 1148 (9th Cir. 2006).

[5] “(a)  Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either:

  1. Without authority of law, appropriates the same, or any portion thereof, to his or her own use, or to the use of another.”

[6] “In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, the person shall be issued a certificate by the law enforcement agency which arrested him describing the action as a detention.”

[7] In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, any record of arrest of the person shall include a record of release. Thereafter, the arrest shall not be deemed an arrest, but a detention only.

[8] “Any deputy sheriff of the County of Los Angeles, and any deputy sheriff of the Counties of … Stanislaus … who is employed to perform duties exclusively or initially relating to custodial assignments with responsibilities for maintaining the operations of county custodial facilities, including the custody, care, supervision, security, movement, and transportation of inmates, is a peace officer whose authority extends to any place in the state only while engaged in the performance of the duties of his or her respective employment and for the purpose of carrying out the primary function of employment relating to his or her custodial assignments, or when performing other law enforcement duties directed by his or her employing agency during a local state of emergency.”

[9] “As provided in this article, Section 25400 does not apply to, or affect, any of the following:

(a)  Any peace officer, listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, whether active or honorably retired.

(b)  Any other duly appointed peace officer.

(c)  Any honorably retired peace officer listed in subdivision (c) of Section 830.5.

(d)  Any other honorably retired peace officer who during the course and scope of his or her appointment as a peace officer was authorized to, and did, carry a firearm.

(e)  Any full-time paid peace officer of another state or the federal government who is carrying out official duties while in California.

(f) Any person summoned by any of these officers to assist in making arrests or preserving the peace while the person is actually engaged in assisting that officer.”

[10] Penal Code section 25400(a) provides: “A person is guilty of carrying a concealed firearm when the person does any of the following:

  • Carries concealed within any vehicle that is under the person’s control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.
  • Carries concealed upon the person any pistol, revolver, or other firearm capable of being concealed upon the person.
  • Causes to be carried concealed within any vehicle in which the person is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person.”

[11] 85 Ops. Cal. Atty. Gen. 130 (2002).

[12] 14 Cal. App. 4th 575 (4th Dist. 1993).

[13] Penal Code §§ 830 et seq.

[14] 21 U.S.C. §§ 801 et seq.

[15] Providing that, within 21 calendar days from issuance of a notice of parking violation or 14 calendar days from the mailing of a notice of a delinquent parking violation, a person “may request an initial review of the notice by the issuing agency.”

[16] “Except as provided in subdivision (c) of Section 40200.4, an issuing agency may elect to contract with the county, with a private vendor, or with any other city or county processing agency, other than the Department of the California Highway Patrol or other state law enforcement agency, within the county, with the consent of that other entity, for the processing of notices of parking violations and notices of delinquent parking violations, prior to filing with the court pursuant to Section 40230.”





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