Courtesy of James, R. Touchstone, Esq.


  1. Defendant in vehicle detained, not when passenger who exited vehicle was detained, but thereafter when sheriff’s deputy, after smelling marijuana from defendant’s vehicle and seeing suspected marijuana in large clear bags therein, told defendant to remain in vehicle.

People v. Tacardon, 53 Cal. App. 5th 89 (3rd Dist. 2020)

Facts: In March 2018, San Joaquin County Sheriff’s Deputy Joel Grubb saw a BMW legally parked between two houses with its engine and headlights off. Three people were in the BMW. Smoke was coming out of the car windows that were slightly cracked open. Deputy Grubb pulled up 15 to 20 feet behind the BMW and parked with the spotlight illuminated. He did not activate his emergency lights or siren. As the deputy approached the BMW, the passenger in the rear seat, M.K., abruptly exited the car, closed the door behind her, and moved to the rear. Deputy Grubb smelled marijuana at about the time M.K. got out, but not before. At that point, the deputy did not consider any of the car’s occupants free to leave, but he did not communicate this thought to them. Deputy Grubb asked what M.K. was doing. After M.K. stated that she lived there, the deputy asked her to stay near the sidewalk behind the BMW. She complied.

Deputy Grubb then used his flashlight to illuminate the BMW’s interior because the rear windows were tinted. On the rear passenger floorboard, he saw three large clear plastic bags containing a green leafy substance. He also saw a custom-rolled unlit dark brown and green cigarette in the center console, containing a burnt green leafy substance. Defendant Leon William Tacardon was sitting in the driver’s seat. Deputy Grubb asked Tacardon and the remaining passenger for their identifications. Tacardon did not produce identification but gave his name and said he was on probation. Deputy Grubb told Tacardon to stay in the car, and then returned to his patrol car to conduct a records check that confirmed Tacardon’s identification and that he was on searchable probation. Deputy Grubb then secured Tacardon in the back of the patrol car, and, along with other deputies, conducted a probation search of the BMW. The search uncovered what a laboratory analysis would reveal to be 696.3 grams of marijuana in the plastic bags, and a vial of hydrocodone pills. Tacardon was arrested, and $1,904 was found on his person.

Tacardon was charged with possession of a controlled substance for sale and misdemeanor possession of marijuana for sale. Tacardon moved to suppress the evidence during the preliminary hearing pursuant to Penal Code section 1538.5. The magistrate denied the motion. Tacardon’s renewed challenge to the search and seizure under Section 995 was granted by the superior court. The People appealed.

Held: On appeal from the superior court’s grant of the Section 995 motion, the Attorney General argued that the superior court erred in concluding Tacardon was detained when Deputy Grubb ordered M.K. to stay outside the car and near the sidewalk behind it. The Attorney General contended that, regardless of whether M.K. was detained at that point, Tacardon was not detained until after Deputy Grubb smelled marijuana and saw three large bags of the substance on the rear floorboard of the BMW, at which point, the deputy had reasonable suspicion that criminal activity was afoot. Tacardon countered that the superior court correctly determined a reasonable person in Tacardon’s position would not have felt free to leave when the deputy prevented M.K. from going into her house and ordered her to remain by the BMW.

The California Third District Court of Appeal explained that not all police interaction with citizens involve “seizures” of persons. “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) “As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. … ‘[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ [Citation.][…]The officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.” (In re Manuel G. (1997) 16 Cal.4th 805, 821; italics added.)

The Court of Appeal explained that it was settled that the driver and occupants of a vehicle are detained when a police officer blocks the vehicle’s only means of departure with the officer’s patrol car.[1] However, without more, a law enforcement officer simply parking behind a defendant would not reasonably be construed as a detention. The Court noted that although the use of emergency lights is a sufficient show of authority to communicate to a reasonable person that he or she is not free to leave,[2] “[w]ithout more, a law enforcement officer shining a spotlight on a person does not constitute a detention.” (People v. Kidd (4th Dist. 2019) 36 Cal.App.5th 12, 21, citing People v. Rico (2nd Dist. 1979) 97 Cal.App.3d 124, 128–129.)

Here, the Third District found no evidence that the BMW was blocked in by Deputy Grubb’s patrol car. The Court maintained that the facts that the deputy pulled up behind the BMW, activated the patrol car’s spotlight, and approached the vehicle on foot, together did not manifest a sufficient show of police authority to constitute a detention. The Court noted that Deputy Grubb did not quickly close the gap between himself and Tacardon or immediately and aggressively question him rather than engage in conversation.[3] The Third District added that although a person whose vehicle is illuminated by police spotlights at night may well feel he or she is the object of official scrutiny, such directed scrutiny does not amount to a detention.

The Court concluded that M.K. was detained after Deputy Grubb’s interaction with her after she exited the BMW and ordered her to remain on the sidewalk near the BMW. However, the Court found no evidence Tacardon observed the deputy’s interaction with M.K., or that the deputy conveyed to Tacardon that he, like M.K., was required to remain.[4] The Court thus concluded that the magistrate’s implied finding that Tacardon was not detained at this point was supported by substantial evidence.

The Third District concluded Tacardon was detained by Deputy Grubb not when the deputy detained M.K., but when the deputy, after smelling marijuana coming from the BMW and seeing three large bags of the substance on the rear floorboard, told Tacardon to remain in the car while he conducted a records check. The Court declared that at that point, the deputy possessed reasonable suspicion Tacardon was engaged in criminal activity. The Court thus concluded the superior court erred by setting aside the magistrate’s ruling denying Tacardon’s motion to suppress evidence. Accordingly, the Court of Appeal reversed the superior court’s order, and remanded with direction to reinstate the information and the magistrate’s order denying Tacardon’s motion to suppress evidence.

  1. Because mere unauthorized presence is not a criminal matter, suspicion of unauthorized presence alone does not give rise to inference that criminal activity is afoot.

Hernandez v. Skinner, 969 F.3d 930 (9th Cir. 2020)

Facts: Miguel Reynaga Hernandez (“Reynaga”) accompanied his wife Jane Reynaga Hernandez (“Jane”) to a hearing in late 2017 on a civil order of protection. Jane had filed a request for a protection order against Rachel Elizondo (“Rachel”) in the Yellowstone County Justice Court in Billings, Montana. Reynaga came to the hearing to serve as a witness. On the morning of the hearing, Pedro Hernandez (“Hernandez”),[5] the presiding Justice of the Peace, asked Reynaga and another witness to wait outside the courtroom before they testified.

During Rachel’s testimony, she stated that Reynaga was “not a legal citizen,” and made a similar statement about the other witness waiting with Reynaga. Based on this statement, Hernandez spoke with the local Sheriff’s Office and asked that Reynaga be “picked up.”

Deputy Sheriff Derrek Skinner responded to the call. Outside the courtroom, Skinner asked Reynaga for identification and questioned him regarding his immigration status in the United States. Reynaga produced an expired Mexican consular identification card but was unable to provide detailed information regarding his immigration status because he does not speak English fluently. Skinner then placed Reynaga in handcuffs, searched his person, and escorted him to a patrol car outside the courthouse. With Reynaga waiting in the back of the patrol car, Skinner ran a warrants check and, after Reynaga’s record came back clean, asked the Yellowstone County Dispatch if Immigrations and Custom Enforcement (“ICE”) “wanted him.” An ICE agent returned Skinner’s call and Reynaga was taken to an ICE facility. Reynaga remained in ICE custody for three months, after which the Department of Homeland Security dismissed the deportation proceeding it had commenced against Reynaga.

After his release from detention, Reynaga sued Skinner and Hernandez under 42 U.S.C. section 1983 for violating his Fourth Amendment rights. On cross-motions for summary judgment, the District Court denied each defendant qualified immunity and held that Reynaga’s Fourth Amendment rights had been violated. Skinner and Hernandez filed an interlocutory appeal against the District Court’s denial of qualified immunity.

Held: On appeal, the Ninth Circuit Court of Appeals considered whether the District Court erred in denying Skinner and qualified immunity. The Ninth Circuit explained, “[t]o determine whether an official is entitled to qualified immunity, we evaluate whether (1) the alleged facts constitute a violation of a constitutional right, and (2) the constitutional right was clearly established at the time of the violation.”

The Court explained that under Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a brief, investigative stop of an individual when they have reasonable suspicion that the “person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009). A court must examine the “totality of the circumstances” to determine whether a detaining officer has a “particularized and objective basis” for suspecting criminal wrongdoing. United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted).

The Court observed that, unlike illegal entry into the United States—which is a crime under 8 U.S.C. section 1325—illegal presence is not a crime. See Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir. 2011) (stating that there is no “federal criminal statute making unlawful presence in the United States, alone, a federal crime[.]”). Therefore, “because mere unauthorized presence is not a criminal matter, suspicion of unauthorized presence alone does not give rise to an inference that criminal activity is afoot.” Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012) (quoting Terry v. Ohio, 392 U.S. 1, 30).

Here, the Court noted that Skinner conducted a Terry stop when he confronted Reynaga outside the courtroom, asked him questions regarding his immigration status, and requested identification. At the time Skinner conducted the stop, the only relevant information available to Skinner was Justice of the Peace Hernandez’s statement that he had heard sworn testimony that Reynaga was “not a legal citizen.” Because “detaining individuals based solely on reasonable suspicion or knowledge that a person was unlawfully present in the United States” is not sufficiently “premised on criminality” to justify a stop under Terry,[6] the Ninth Circuit concluded that the single statement conveyed by Hernandez regarding Reynaga’s unlawful status was not a sufficiently “particularized and objective basis” for Skinner to believe that Reynaga was “engaged in, or [] about to engage in, criminal activity[.]”[7] The Court noted that Hernandez did not describe Reynaga’s manner of entry nor provide additional information suggestive of criminal conduct. Because Melendres and Martinez-Medina controlled and Skinner failed to demonstrate that he had a particularized and objective basis for believing criminal activity was afoot, the Ninth Circuit affirmed the District Court’s holding that Skinner violated the Fourth Amendment when he seized plaintiff by Terry-stopping and then arresting him without reasonable suspicion or probable cause, respectively.

The Ninth Circuit also held that under either the proximate or the but-for standard of causation, Justice of the Peace Hernandez was an integral participant in the violation of Reynaga’s constitutional rights. The Court of Appeals explained that Skinner would not have been present at the courthouse or questioned Reynaga but-for Hernandez’s phone call. Moreover, Reynaga’s unlawful stop and arrest were reasonably foreseeable consequences—or, at the very least, within the scope of risk—of Hernandez’s orders.

Regarding the second prong of the qualified immunity analysis, the Ninth Circuit also held that Reynaga’s right to be free from unlawful stops in this context had been clearly established since at least 2012, by which time both Melendres and Martinez-Medina were law of the circuit. The Court explained that Skinner detained Reynaga based solely on knowledge that he was unlawfully present in the United States, and Reynaga’s right to be free from detention absent reasonable suspicion in this context was clearly established at the time of the stop in 2017.

The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s denial of qualified immunity to the defendants.

  1. Petitioner’s confession was voluntary because he was read his Miranda warnings, his interview was non-threatening, and there was no evidence that he was easy to manipulate.

Balbuena v. Sullivan, 2020 U.S. App. LEXIS 25987 (9th Cir. Aug. 17, 2020)

Facts: In January 2006, Jose Segura was shot and killed while he was sitting in his car with his wife and two children. Segura’s wife was shot and injured. She reported that several men had surrounded the car, that the man standing nearest to Segura had said that the men wanted revenge for a murder, and that the man then shot Segura. A witness told investigating officers that she had seen Alexander Balbuena and another man with guns just before the shooting; that she heard gun shots; that Balbuena tried to hide a gun under a couch; and that later in the day Balbuena told her that he shot Segura in the forehead. The witness pointed out Balbuena’s apartment. Around 2:00 a.m., after obtaining a warrant, the detectives found Balbuena in his apartment asleep with his pregnant girlfriend and arrested him.

Balbuena was taken to a police station where two detectives questioned him, for approximately ninety minutes, starting at about 2:45 a.m. Balbuena, who was approximately sixteen years old, had no prior arrests. At the beginning of the interview, one of the detectives read Balbuena his rights under Miranda v. Arizona, 384 U.S. 436 (1966). A detective asked, “…are you willing to talk to us about why we were at your house tonight?” Balbuena replied, “Yup. Yup.”

Balbuena initially denied being at the scene of Segura’s murder. The detectives then falsely told Balbuena that they knew he was at the scene, and told him “it’s important for you to be honest with us so if there is some way to help yourself out this is the time to do it.” They also referred to Balbuena’s impending fatherhood, describing Balbuena as “the sixteen year old that’s going to be a father soon.” During the interview, the detectives presented Balbuena with alternative scenarios for his actions. Balbuena acknowledged that he was at the scene of the murder but denied having a gun. The detectives resumed their presentation of alternative scenarios, and called upon Balbuena to be honest. Balbuena continued to deny that he had a gun but admitted he was “right there in front of the car.” A detective then stated, “[R]emember, we are giving you the opportunity to try to work through this so maybe you can be there for your kid in a few years.” Balbuena again admitted being in front of the car and again denied having a gun. The detectives told Balbuena that witnesses saw him shooting a gun and asked what type of gun he had, as “only one of them hit somebody . . . .[s]o it’s important which one you had.” Balbuena then admitted having a .32-caliber handgun, shooting three or four rounds at the car’s front window, and seeing two people in the car.

As the interview proceeded, the detectives referred to the possible sentences Balbuena faced, stated that he would be tried as an adult, implied that he would receive lenient treatment if he spoke honestly and showed “remorse.” After these statements, Balbuena provided details about the incident, including that Balbuena was given the gun by another man and told to shoot, that Balbuena belonged to the RST gang, and that Segura’s murder was gang retaliation for the murder of another RST member.

Before trial, Balbuena moved to suppress his statements as involuntary. The trial court denied the motion. In April 2008, a jury found Balbuena guilty of first-degree murder, attempted murder, and street terrorism. The trial court sentenced Balbuena to eighty-two-years-to-life imprisonment. On direct appeal, Balbuena argued, among other things, that his confession was coerced in violation of his constitutional rights. The California Court of Appeal, considering the totality of the circumstances, affirmed. The Court of Appeal concluded that Balbuena’s statements were voluntary, and found that any error in admitting Balbuena’s statements harmless because the evidence against him was “very strong.” The California Supreme Court denied review.

In January 2011, Balbuena filed a petition for a writ of habeas corpus in federal District Court arguing that his confessed statements were involuntary. The District Court denied Balbuena’s habeas petition. Balbuena appealed.

Held: On appeal, Balbuena contended, among other things, that the state court’s admission of his confession violated his due process rights because his confession was the involuntary product of coercion.

The Ninth Circuit Court of Appeals explained that an involuntary or coerced confession violates a defendant’s right to due process under the Fourteenth Amendment and is inadmissible at trial. Jackson v. Denno, 378 U.S. 368, 385-86 (1964). To determine whether a confession is involuntary, courts must ask “whether a defendant’s will was overborne by the circumstances surrounding the giving of a confession,” considering “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” Dickerson v. United States, 530 U.S. 428, 434 (2000) (internal quotation marks and citations omitted). “The characteristics of the accused can include the suspect’s age, education, and intelligence as well as a suspect’s prior experience with law enforcement,” Yarborough v. Alvarado, 541 U.S. 652, 668 (2004) (citations omitted), and the suspect’s maturity, Withrow v. Williams, 507 U.S. 680, 693 (1993). The details of the interrogation include its length and location, and whether the suspect was advised of his Miranda rights. Id. at 693-94. Generally, telling a suspect to speak truthfully does not amount to police coercion.[8] Police deception alone also “does not render [a] confession involuntary,”[9] nor is it coercive to recite “potential penalties or sentences,” including the potential penalties for lying to the interviewer, United States v. Haswood, 350 F.3d 1024, 1029 (9th Cir. 2003) (citations omitted).

“The [voluntariness] determination ‘depend[s] upon a weighing of the circumstances of pressure against the power of resistance of the person confessing.’”[10] Thus, the court reviews a confession from a teenager with “special caution.”[11] However, even in the case of a juvenile, indicating that a cooperative attitude would benefit the accused does not render a confession involuntary unless such remarks rise to the level of being “threatening or coercive.”[12]

Applying the highly deferential standards[13] of federal habeas review of state-court rulings in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) (See 28 U.S.C. sections 2244(b), 2254(d)), the Ninth Circuit held that the state court’s conclusion that Balbuena’s confession was voluntary was not contrary to or an unreasonable application of federal law. The Court determined that the state court did not unreasonably conclude that Balbuena was sixteen years old and considered his age, experience, and maturity as part of the totality of the circumstances of his confession. The Court stated that the totality of the circumstances established that Balbuena was advised of his Miranda rights. Balbuena contended that the warnings were deficient because even though the detectives advised him that he had a right to an attorney before questioning, they did not advise him that he had the right to have an attorney during questioning. However, the Court noted that the Supreme Court had never found Miranda warnings invalid on this basis. The Court determined that the state court did not unreasonably conclude that the circumstances of the interview, which included the detectives’ limited references to Balbuena’s unborn child, use of “alternative scenarios,” and implied officers of leniency were not coercive. The Court noted, moreover, that a video recording of the interview refuted Balbuena’s argument that those tactics overbore his will and rendered his confession involuntary. Finding the District Court’s rulings otherwise appropriate, the Ninth Circuit Court of Appeals accordingly affirmed.

  1. The presence of an unsealed bag of marijuana plainly visible on a vehicle passenger’s person constitutes probable cause to search the passenger’s purse.

People v. McGee, 2020 Cal. App. LEXIS 779 (3rd Dist. July 28, 2020)

Facts: In July 28, 2018, Stockton Police Officers Greg Spears and David Muser initiated a traffic stop of a car after noticing its registration had expired. After the car pulled over, Officer Spears approached the driver’s side of the car and encountered Defendant Tyrone Brendon McGee, while Officer Muser approached the passenger’s side and encountered a female passenger. As they approached the car, both officers noted the scent of unburned marijuana. After Officer Spears asked about the scent, McGee denied having any marijuana in the car. However, Officer Muser saw what appeared to be an unsealed bag of marijuana in the passenger’s cleavage. After Officer Muser said he could see the marijuana, Officer Spears removed McGee from the driver’s seat and informed him they were going to search the car. McGee did not consent to a search but was cooperative. Officer Muser also removed the passenger from the car. After retrieving the bag of marijuana from the passenger, Officer Muser confirmed it was, in fact, unsealed.

While both McGee and the passenger were out of the car, Officer Muser noticed a zipped purse on the passenger floorboard. Officer Muser searched the purse for contraband, and seized a loaded handgun from the purse. Officer Muser read McGee his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and McGee acknowledged he understood his rights. McGee admitted he placed the gun in the passenger’s purse when he noticed the officers behind his car.

McGee moved to suppress evidence of all statements made by him and any evidence seized in the search, contending that because marijuana is now generally legal in California, the scent of unburned marijuana did not indicate McGee or the passenger were breaking the law and thus could not give rise to a probable cause search. The magistrate denied the motion to suppress. After the trial court denied McGee’s renewed suppression motion following the prosecution’s filing of an information, McGee pled no contest to being a felon in possession of a firearm and was sentenced to the low term of 16 months. McGee appealed, challenging the trial court’s denial of his motion to suppress evidence seized during the search of the car and the passenger’s purse.

Held: On appeal, McGee contended that the search incident to arrest and the automobile exception did not justify the warrantless vehicle search performed by Officers Spears and Muser. McGee argued the exception did not apply because the enactment of Proposition 64 legalized possession of small amounts of marijuana for personal use. The People argued that the search of the passenger’s purse was justified by probable cause and thus valid under the automobile exception.

The California Third District Court of Appeal observed that the Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. (U.S. Const., 4th Amend.) Warrantless searches are presumed unreasonable, “subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States (1967) 389 U.S. 347, 357.) The automobile exception provides “police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.” (People v. Evans (2nd Dist. 2011) 200 Cal.App.4th 735, 753; see also Carroll v. United States (1925) 267 U.S. 132, 149.) Once an officer has probable cause to search the vehicle under the automobile exception, they “may conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view.” (United States v. Ross (1982) 456 U.S. 798, 800.) Probable cause to search exists “where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” (Ornelas v. United States (1996) 517 U.S. 690, 696.)

Here, the Court observed that when Officers Spears and Muser approached McGee’s car, Officer Muser saw an unsealed bag of marijuana in the passenger’s cleavage. The Court stated that the relevant question was whether there was probable cause to search the passenger’s purse pursuant to the automobile exception.

The Court explained that Health and Safety Code section 11362.3(a)(4) which states that while the possession of up to 28.5 grams of marijuana is now lawful pursuant to Health and Safety Code section 11362.1, it remains unlawful to “[p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle.” (Italics added.) Officer Muser witnessed the passenger in possession of an unsealed container of marijuana in violation of Section 11362.3(a)(4). The Court stated that the presence of this contraband provided probable cause to believe the passenger possessed other open containers. (See People v. Souza (6h Dist. 1993) 15 Cal.App.4th 1646, 1653 [“an open container within plain view provides probable cause to believe that other open containers may be found in the vehicle”].) The Court concluded that Officer Muser therefore had probable cause to search the passenger and her purse for further evidence of contraband. Officer Muser’s search of the purse, as a compartment or container within the vehicle whose contents were not in plain view, was therefore justified under the automobile exception. Accordingly, the Third District affirmed.

  1. Once in custody, an arrestee is vulnerable, dependent, subject to the control of the officer and unable to attend to his or her own medical needs; due to this special relationship, the officer owes a duty of reasonable care to the arrestee.

Fausto v. Dep’t of the Cal. Highway Patrol, 2020 Cal. App. LEXIS 798 (1st Dist. Aug. 21, 2020)

Facts: In March 2015, CHP Officers Michael Diehl and his partner stopped a vehicle at about 4 a.m. for driving with fog lights but no headlights illuminated. The officers learned the driver, John Anthony Cornejo, was unlicensed. The partner called for backup, as there were three passengers in the vehicle in addition to Cornejo. CHP Officers Cosimo Bruno and David Hazelwood, Jr. were among the officers who responded to the scene. Diehl detected the odor of alcohol coming from the car. Diehl conducted a pat-down search at the back of Cornejo’s car, after which Cornejo moved his right hand in front of his mouth. Diehl asked if Cornejo had anything in his mouth and when Cornejo started to answer, Diehl observed a “chewing motion.” Cornejo said it was gum. Diehl asked Cornejo to spit out what was in his mouth. Diehl later testified that that he told the other officers on the scene he believed Cornejo had swallowed a controlled substance.[14]

Cornejo became very nervous, backing away from Diehl while raising his arms in front of his face and “swatting” at Diehl, then turning and starting to run. According to Diehl, Cornejo had had his back to Officers Hazelwood and Bruno, who were about 20 feet away. Diehl and other officers grabbed Cornejo and brought him to the ground as Cornejo yelled that he only had gum. The officers took Cornejo into custody.

Cornejo said he had decided to swallow his gum. Diehl asked if Cornejo had swallowed any drugs, and Cornejo repeated that it was only gum. Diehl explained to Cornejo that if he “made a mistake and swallowed drugs,” Diehl “would need to call for medical staff to ensure his health would not be affected.” A search of Cornejo’s vehicle revealed a methamphetamine pipe and Brillo pad, which Diehl testified is commonly used by crack cocaine users. Cornejo declined the officers’ offers of medical attention.

Hazelwood and Bruno took Cornejo to a detention facility. At the gate where the Alameda County sheriffs receive arrestees, Cornejo was asked whether he had consumed drugs or alcohol. Hazelwood informed the deputy sheriff that Cornejo had swallowed something, and that Cornejo had said it was gum. Cornejo had not exhibited any symptoms of drug intoxication to this point.

Bruno drafted the documents related to the arrest and Hazelwood, as field training officer, reviewed them.[15] One of these documents was the declaration of probable cause, which stated in part: “Officer Hazelwood and I observed Cornejo swat his right hand at his mouth and appeared to place what looked like a plastic baggie in his mouth. … Officer Diehl instructed Cornejo to spit out the bag, however, he refused, claiming it was only gum….” The arrest report Bruno drafted did not mention a bag or baggie.

According to the testimony of the deputy sheriff intake officer on duty at the detention facility, the CHP officers did not tell him that Cornejo swallowed a plastic baggie or that they believed he swallowed a controlled substance. If they had, the intake officer would have summoned a nurse. The intake officer also testified that Cornejo appeared calm and lucid, not showing any signs of medical distress.

Another deputy sheriff at the facility checked on Cornejo multiple times and asked if Cornejo needed medical attention, but Cornejo declined each offer. However, Cornejo was later found on a holding cell floor, shaking and with foam in his mouth. He was taken by the paramedics and died at a hospital. A medical examiner concluded that Cornejo died of acute methamphetamine intoxication.

Plaintiffs Yolanda Frausto and Norman Cornejo, parents of John Anthony, sued the CHP and individual CHP officers in state court for negligence, wrongful death, and other claims. The case was removed to federal court after the complaint was amended to include a federal claim for violation of civil rights under 42 U.S.C. section 1983. The federal court granted the CHP defendants’ motion for summary judgment on the federal claim and declined to exercise jurisdiction over the state claims.[16]

Plaintiffs returned to state court with a complaint against the CHP and officers. The case ultimately went to trial on the negligence claim in the fourth amended complaint. The jury returned a special verdict against defendants in the amount of $827,544.00, allocating comparative fault 35 percent to Officer Diehl, 13 percent to Officer Bruno, and 30 percent to Officer Hazelwood, and 22 percent to Cornejo. After judgment was entered, the defendants unsuccessfully moved for judgment notwithstanding the verdict. Defendants appealed.

Held: The California First District Court of Appeal noted that “[p]ublic employees are liable for injuries resulting from their acts or omissions to the same extent as private persons, except where otherwise exempted or immunized by law. ([Government Code section] 820.) Public entities are correspondingly liable for the negligent acts or omissions of their employees acting within the scope of their employment except where either the employee or the public entity is immunized from liability by statute. ([Government Code section] 815.2.) ….” (Adams v. City of Fremont (1st Dist. 1998) 68 Cal.App.4th 243, 264.)

Defendants argued that no statute imposed a duty on officers to obtain medical care for an arrestee; no special relationship was created because the officers took no affirmative action increasing the risk to Cornejo, who created his own peril by swallowing the methamphetamine, and Cornejo did not detrimentally rely upon the officers for assistance; and because there was no basis for the officers to override Cornejo’s constitutional right to refuse medical treatment. Plaintiffs argued that once Cornejo was arrested, a special relationship was created that gave rise to a duty of care.

The First District observed that “[a]s a rule, one has no duty to come to the aid of another.” (Williams v. State of California (1983) 34 Cal.3d 18, 23), and that “law enforcement officers, like other members of the public, generally do not have a legal duty to come to the aid of another person … .” (Lugtu v. California Highway Patrol, supra, 26 Cal.4th at p. 717.) However, liability may be imposed if an officer voluntarily assumes a duty to provide a particular level of protection, and then fails to do so (see Williams, at pp. 23–24 & fn. 3), or if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff.[17]

In Giraldo v. Department of Corrections & Rehabilitation (1st Dist. 2008) 168 Cal.App.4th 231, the First District observed, “It has been observed that a typical setting for the recognition of a special relationship is where ‘the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff’s welfare.’ (Kockelman v. Segal ([6th Dist.] 1998) 61 Cal.App.4th 491, 499 [], citing Prosser & Keeton, Torts (5th ed.1984) [Section] 56, p. 374.)” (Giraldo, at pp. 245–246.) “Prisoners are vulnerable. And dependent. Moreover, the relationship between them is protective by nature, such that the jailer has control over the prisoner, who is deprived of the normal opportunity to protect himself from harm inflicted by others. This, we conclude, is the epitome of a special relationship, imposing a duty of care on a jailer owed to a prisoner.” (Id. at pp. 250–251.)

The Ninth Circuit applied Giraldo’s reasoning to the arrest context, predicting that the California Supreme Court would conclude a “similar relationship exists between a law enforcement officer and an arrestee in his custody in need of immediate medical attention.” (Winger v. City of Garden Grove (9th Cir. Mar. 18, 2020) 806 Fed. Appx. 544.) Winger reversed a summary judgment in favor of the police department, finding there was a genuine factual dispute as to whether officers breached their duty of reasonable care to an arrestee by failing to take her to a hospital instead of jail, despite her refusal of medical care, where there was evidence from which a reasonable jury could have concluded the officers should have recognized the arrestee was displaying symptoms of a stroke, required immediate medical attention and was not capable of refusing medical care. (Id. at p. 546.)

Here, the First District agreed with Winger that the same factors discussed in Giraldo applied to the relationship between a law enforcement officer and arrestee. The Court thus declared that, once in custody, an arrestee is vulnerable, dependent, subject to the control of the officer and unable to attend to his or her own medical needs. The Court held that, because of this special relationship, the officer owes a duty of reasonable care to the arrestee. The Court explained that once Cornejo was in custody, he was subject to the control of the officers and no longer in a position to attend to his own medical needs. The Court concluded that when the CHP officers took Cornejo into custody, regardless of Cornejo’s role in creating his own situation, the officers had a duty to use reasonable care in responding to the situation. Whether the officers should have recognized a need for immediate medical attention despite the absence of symptoms of drug use and Cornejo’s disclaimers and rejection of offers of medical assistance was a question of fact, as was the question whether the duty of care was satisfied by taking Cornejo to jail rather than the hospital. These were questions for the jury, not legal questions delineating the scope of the duty.

Moreover, the Court found that, to properly evaluate the officers’ conduct (and Cornejo’s, for apportionment of comparative fault), it was relevant for the jury to understand that Cornejo had an incentive to lie about what he ingested and decline medical care in order to avoid admitting the crime of possession of a controlled substance, and to assess whether and how a reasonable officer would have taken this into account in responding to the situation.

The First District Court of Appeal accordingly affirmed.

  1. In lawsuit alleging pre-towing notice was inadequate under Due Process Clause, District Court did not apply appropriate “reasonably calculated” standard when deciding whether method of notice satisfied due process.

Grimm v. City of Portland, 2020 U.S. App. LEXIS 26672 (9th Cir. Aug. 21, 2020)

Facts: In December 2017, the City of Portland (the “City”) left six citations on Andrew Grimm’s illegally parked car over the course of seven days. On the seventh day, the officer issuing Grimm’s sixth and final citation also placed a “separate red tow slip” on Grimm’s windshield. The slip had the word “TOW” on one side and an order to tow the vehicle on the other. The officer then contacted Retriever Towing, which towed Grimm’s car at some point before Grimm learned that his car had been towed when he looked for it three days later.

Grimm, an attorney, filed a pro se lawsuit against Retriever Towing, the City, and the City officers who issued his citations. Grimm alleged that the pre-towing notice provided was inadequate under the Fourteenth Amendment’s Due Process Clause. Retriever Towing filed a motion to dismiss. The District Court dismissed Grimm’s case against Retriever Towing, relying mainly on a 2017 unpublished disposition from the Ninth Circuit Court of Appeals, Sackman v. City of Los Angeles, 677 F. App’x 365, 366 (9th Cir. 2017). That case affirmed the application of the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), to a towing notice case. Grimm ultimately settled his suit against Retriever Towing.

The City then filed a motion for summary judgment, incorporating arguments from Retriever Towing’s motion to dismiss. The District Court granted the City’s motion, rejecting Grimm’s argument that Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) was the applicable legal standard for his adequacy of notice claim. Grimm’s appealed.

Held: On appeal, Grimm argued that (1) pre-towing notice was required; (2) the District Court applied the incorrect legal standard when considering Grimm’s adequacy of notice claim; and (3) the pre-towing notice given was inadequate, mainly because the City was obligated to attempt other forms of notice when the car was not moved and the citations remained on the windshield.

The Ninth Circuit Court of Appeals first reiterated a settled principle: Due process requires that individualized notice be given before an illegally parked car is towed unless the state has a “strong justification” for not doing so. Clement v. City of Glendale, 518 F.3d 1090, 1094 (9th Cir. 2008). Thus, pre-towing notice is presumptively required.

The Court found that the District Court erred by relying on the unpublished disposition in Sackman. The Court held that Mullane, rather than Mathews, sets forth the appropriate standard for analyzing the adequacy of a pre-towing notice claim. Under Mullane, the government is required to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. (Mullane, supra, at p.314-15.) The Court stated that Ninth Circuit caselaw supported the understanding that Mathews applies when determining whether individualized pre-towing notice is required at all, not what form of notice is required, i.e. the adequacy of notice. Grimm’s central claim was that the type of pre-towing notice the City provided (the red “TOW” slip) was inadequate. He did not claim that there was no notice. The Ninth Circuit Court of Appeals accordingly reversed the District Court’s summary judgment in favor of the City.

Because the District Court applied an incorrect legal standard in determining whether the pre-towing notice was sufficient, and the record was not fully developed, the Ninth Circuit remanded the case to the District Court with instructions to consider, among other questions: (1) Is putting citations on a car that do not explicitly warn that the car will be towed reasonably calculated to give notice of a tow to the owner?; (2) Did the red tow slip placed on plaintiff’s car shortly before the tow provide adequate notice?; and (3) Was the City required under Jones v. Flowers, 547 U.S. 220 (2006) to provide supplemental notice if it had reason to suspect that the notice provided by leaving citations and the tow slip on Grimm’s windshield was ineffective?

  1. Workers’ compensation benefits are plaintiffs’ exclusive remedy for the injuries they sustained in responding to peace officer’s request to provide assistance.

Gund v. Cnty. of Trinity, 2020 Cal. LEXIS 5542 (Aug. 27, 2020)

Facts: Under Labor Code section 3366(a), when members of the public engage in “active law enforcement service” upon a peace officer’s request to further some public safety purpose, those members of the public are treated as employees eligible for workers’ compensation benefits for injuries that consequently occur. However, workers’ compensation then becomes such an individual’s exclusive remedy for injuries under California law (Labor Code section 3602(a); Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) Workers’ compensation benefits are narrower in scope than the range of damages available in tort claims.

In March 2011, the California Highway Patrol (“CHP”) received a phone call from a female caller named Kristine. Kristine whispered, “Help me,” and said she lived at the end of the Kettenpom airstrip. Kettenpom is in Trinity County, a mountainous region of 3,200 square miles. The CHP dispatcher relayed the content of Kristine’s call to the Trinity County Sheriff’s Department. The Sheriff’s Department is located almost 100 miles away from Kettenpom. The CHP dispatcher explained she was reluctant to call Kristine back in case Kristine was trying to avoid being overheard. Twice, a Trinity County dispatcher attempted to contact Kristine, but the calls went straight to voicemail. The county dispatcher relayed this information to Trinity County Sheriff’s Corporal Ronald Whitman.

Corporal Whitman knew that Norma and James Gund lived in the vicinity of the Kettenpom airstrip. While Corporal Whitman was headed towards Kristine’s home but still some distance away, he called Norma Gund and explained that her neighbor Kristine had called 911. Corporal Whitman asked Mrs. Gund if she would go check on Kristine, because the Gunds were much closer to Kristine’s home and Corporal Whitman was still hours away. After Mrs. Gund agreed, Corporal Whitman asked if Mr. Gund was home, and Mrs. Gund said no. Corporal Whitman instructed Mrs. Gund not to go to Kristine’s home by herself. Mrs. Gund asked what Kristine said on the call, and Corporal Whitman responded that Kristine said, “Help me.” Mrs. Gund then asked, “Are you sure? Is that all she said?” Corporal Whitman responded, “She said two words, ‘Help me.’” Mrs. Gund told Corporal Whitman that Mr. Gund had just arrived home, and Corporal Whitman said, “Good.” Corporal Whitman did not tell Mrs. Gund that Kristine had whispered on the phone, that the CHP dispatcher believed she had been trying to call secretly, or that the county dispatcher’s return calls to Kristine went straight to voicemail.

Mrs. Gund confirmed for Corporal Whitman that she’d been to Kristine’s property before, to help the previous owner with snow and fallen trees. Corporal Whitman mentioned the impending arrival of a major storm, which “must be what this is all about.” Corporal Whitman then asked if Mrs. Gund had ever met Kristine’s boyfriend and if he seemed violent. Mrs. Gund confirmed that she had met Kristine’s boyfriend. In response to whether he ever seemed violent, Mrs. Gund indicated she “didn’t know. He seemed real mellow.” Corporal Whitman gave Mrs. Gund his cell phone number and instructed her to call him as soon as she and her husband had checked on Kristine. Believing the emergency to be weather related, the Gunds drove to Kristine’s home. They speculated that maybe a tree had fallen or that Kristine, a young city girl, was having trouble with her wood burning stove.

After arriving at Kristine’s home, the Gunds were violently attacked with a knife by the man who had just murdered Kristine and her boyfriend. The Gunds separately managed to escape with severe wounds.

The Gunds filed suit against Corporal Whitman and Trinity County (the “County”). Their amended complaint alleged causes of action for: liability for the act or omission of a public employee; vicarious liability for the act or omission of a public employee; misrepresentation by a public employee, with actual malice; and vicarious liability for misrepresentation by a public employee, with actual malice. The Gunds argued that Corporal Whitman sought to secure their assistance by falsely assuring them that Kristine’s call was probably weather related and knowingly withholding the information that Kristine whispered, that the CHP dispatcher thought Kristine was calling secretly, and that the county dispatcher’s return calls went straight to voicemail.

The County and Corporal Whitman moved for summary judgment, contending that workers’ compensation was the Gunds’ exclusive remedy because they sustained their injuries while engaged in active law enforcement service under Section 3366. The Gunds argued that Section 3366 did not apply because, given Corporal Whitman’s alleged misrepresentations, they did not understand themselves to be engaged in “active law enforcement service” when they complied with his request, nor would a reasonable person have understood this to qualify under that standard. The trial court granted the County and Corporal Whitman’s motion for summary judgment, and a Court of Appeal affirmed, concluding that Section 3366 applied.

Held: The Supreme Court of California granted review on its own motion in order to determine the scope of workers’ compensation coverage available to the Gunds, observing that the availability of such coverage would constrain the Gunds in seeking other redress for their injuries. This inquiry hinged on whether the Gunds engaged in “active law enforcement” under Section 3366, even assuming Corporal Whitman’s alleged misrepresentations.

The Court explained that workers’ compensation benefits are available for an employee’s injury “arising out of and in the course of the employment” where “the injury is proximately caused by the employment.”[18] Civilians who volunteer to assist law enforcement only become “employee[s]” if they fall within the scope of Section 3366’s coverage.[19] In this context, under Section 3602(a), workers’ compensation is “the sole and exclusive remedy of the employee.”

Section 3366(a) provides, in part: “For the purposes of this division, each person engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person . . . engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division.” (Italics added.)

In determining the meaning of “active law enforcement service” under Section 3366, the Supreme Court first observed that the phrase “active law enforcement service” was not defined by Section 3366, nor elsewhere in any other related statutory provision. The Gunds argued that the phrase only signified a narrow subset of policing tasks: the type of active investigation and suppression of crime entailing risk of death or serious injury while providing protection to the public. The defendants asserted that “active law enforcement service” identified the main duties of a police officer, which was a broader scope than that suggested by the Gunds.

The Supreme Court concluded that the phrase “active law enforcement service,” encompassed the duties of peace officers directly concerned with enforcing the laws, investigating and preventing criminal activity, and protecting the public. The Court found that the statutory text, legislative history, and their associated court cases supported the interpretation that “active law enforcement service” was best understood as capacious (though not entirely open ended) to include these core public protection, enforcement, and crime-fighting functions. Moreover, “active law enforcement” assuredly included responses to 911 emergency calls for assistance of an unknown nature — which possibly include responding to criminal activity.

The Supreme Court explained here that the Gunds responded to a 911 call for assistance of an unknown nature, so they were properly deemed employees under Section 3366. The Gunds acted at Corporal Whitman’s request. Corporal Whitman’s request was for the Gunds to respond to a 911 call for help of an unspecified nature. The Court noted that responding to a 911 call for unspecified help serves a vital public protection purpose. Corporal Whitman explained that Kristine called 911 seeking help. Because he was far away, Corporal Whitman sought the Gunds’ help to check on Kristine at her home. The Court noted that Corporal Whitman or one of his law enforcement colleagues would ordinarily provide such a response. Accordingly, the Court concluded that the requested service here fell squarely within the purview of the Court’s interpretation of “active law enforcement service” under Section 3366.

The Court added that the specific details of the exchange between Corporal Whitman and Mrs. Gund did not alter the core nature of his request that the Gunds respond to a 911 call for unspecified help. After requesting Mrs. Gund’s assistance, Corporal Whitman made clear he did not know the reason for Kristine’s call for help. While Corporal Whitman suggested the matter might be regarding the impending big storm, he followed by asking Mrs. Gund if she knew Kristine’s boyfriend and if he ever seemed violent. Despite Corporal Whitman’s assessment that there was likely a weather emergency and that it was “probably no big deal,” the Court maintained that his general request was still one for a response to a 911 call for help of an uncertain nature — a typical law enforcement task often associated with investigation of possible criminal activity, response to such activity, or protection of the public.

The Court also explained that the Gunds’ allegation that a request for assistance contained a misrepresentation, without more, did not preclude application of Section 3366 and the exclusivity provision of Labor Code section 3602(a). The Court stated that misrepresentations did not change the Court’s construction of “active law enforcement service,” which considered the type of task rather than an individual’s subjective understanding of risk.

The Supreme Court thus concluded that Section 3366 applied here, and that workers’ compensation benefits were the Gunds’ exclusive state law remedy pursuant to Labor Code section 3602(a). The Court accordingly affirmed.

Justice Groban dissented, joined by Justice Chin. The Dissent agreed that Section 3366 applied when a civilian agrees to perform active law enforcement service at a peace officer’s request but disagreed that Corporal Whitman asked the Gunds to perform an active law enforcement task. The Dissent maintained that it was objectively reasonable for the Gunds to believe that Corporal Whitman asked them to render neighborly assistance with a relatively risk-free weather-related problem, because Corporal Whitman told the Gunds that the 911 call “must be” weather related and was “probably no big deal.” Moreover, the Dissent’s view was that Corporal Whitman omitted important details from the 911 call that would have made the Gunds aware of the potential danger they faced and that they were being asked to assume the particularly hazardous functions and risks of a law enforcement officer. More broadly, the Dissent stated that the words, facts, and context of the peace officer’s request matters. The Dissent would therefore hold that the Gunds were not subject to Section 3366 and would reverse.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 28, available at www.jones-mayer.com.


Ninth Circuit finds that California Government Code section 32310, which bans possession of large-capacity magazines (“LCMs”), violates the Second Amendment.

Duncan v. Becerra, 2020 U.S. App. LEXIS 25836 (9th Cir. Aug. 14, 2020)

Facts: In response to tragic and highly publicized mass shootings, the state of California in 2016 passed legislation which amended Penal Code section 32310 to enact a wholesale ban on the possession of LCMs by “any person in this state who possesses any large-capacity magazine, regardless of the date the magazine was acquired” in the state of California. (Section 32310(c).) Possession may constitute a misdemeanor offense punishable by up to a year’s worth of jail time.[20] The law also requires citizens who own LCMs to remove the magazines from the state, sell them to a firearms dealer, or surrender them to law enforcement for destruction.[21]

Millions of Americans across the country own LCMs. One estimate based in part on government data showed that from 1990 to 2015, civilians possessed about 115 million LCMs out of a total of 230 million magazines in circulation. LCMs may be lawfully possessed in 41 states and under federal law. LCMs are commonly used in many handguns, which the Supreme Court has recognized as the “quintessential self-defense weapon.” District of Columbia v. Heller, 554 U.S. 570, 629 (2008).[22]

Virginia Duncan and other plaintiffs, who lawfully acquired LCMs or represented those who did so (collectively, the “Owners”), brought a constitutional challenge to Section 32310. Two days before the possession ban was to take effect, the District Court issued a preliminary injunction enjoining enforcement of the law.[23] On appeal, the Ninth Circuit Court of Appeals affirmed.[24] While the interlocutory appeal was pending, the Owners filed a motion for summary judgment. The District Court issued an order granting the Owners’ motion,[25] concluding in part that Section 32310 violates the Second Amendment.

On the Second Amendment claim, the District Court based its decision on three independent holdings. First, it concluded that Section 32310 did not satisfy the “simple Heller test,” which queries whether the firearm or firearm component is commonly owned by law-abiding citizens for lawful purposes. The District Court found that “[m]illions of ammunition magazines able to hold more than 10 rounds are in common use by law-abiding responsible citizens for lawful uses like self-defense.” Second, the District Court held that Section 32310 fails under strict scrutiny for lack of narrow tailoring. The District Court found Section 32310’s complete prohibition on possession by nearly everyone, everywhere, to be the hallmark of a sloppy fit. Finally, the District Court held that, even though it believed intermediate scrutiny was the wrong standard to apply, Section 32310 still failed under this more lenient standard because the statute was not a reasonable fit to the important public safety interests that it was enacted to serve. Based on these conclusions, the District Court found no genuine dispute of material fact that Section 32310 violated the United States Constitution and ordered summary judgment for the Owners. California appealed.

Held: The Ninth Circuit Court of Appeals explained that 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. In 2008, the Supreme Court held that the Second Amendment protects “an individual right to keep and bear arms.” Heller, 554 U.S. at 595. The Court later incorporated the Second Amendment to the states through the Fourteenth Amendment’s Due Process Clause. McDonald v. City of Chicago, 561 U.S. 742, 767 (2010). A citizen’s right to self-defense, the McDonald Supreme Court held, is “deeply rooted in this Nation’s history and tradition,” and “fundamental to our scheme of ordered liberty.” Id. at 767-78. The Ninth Circuit here added that “history, text, and tradition underscore that the right to armed self-defense is fundamental.”

The Supreme Court in Heller found the “inherent right to self-defense” to be a critical component of the Second Amendment and that the virtual handgun ban at issue in Heller was constitutionally infirm because the handgun is the “quintessential self-defense weapon.” Id. at 628-29. The Court similarly found the disassembly or trigger-lock requirement unconstitutional because it “makes it impossible for citizens to use [arms] for the core lawful purpose of self-defense.” Id. at 630. However, the Ninth Circuit observed, weapons that are “dangerous and unusual” fall outside the Second Amendment’s protection. Id. at 627.

The Court of Appeals explained that the standard within the Ninth Circuit assesses the constitutionality of firearm regulations under a two-prong test. This inquiry “(1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.” United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013) (internal citations omitted).

The Ninth Circuit held that under the first prong of the test, Section 32310 burdened protected conduct. First, the Court held that firearm magazines are protected arms under the Second Amendment. Second, the Court held that LCMs are commonly owned and typically used for lawful purposes and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the Court held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the Court determined that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.

Turning next to second prong of the inquiry, the Court of Appeals held that strict scrutiny was the appropriate standard to apply. First, the Court held that Section 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the Court held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the Court held that decisions in other circuits were distinguishable. Fourth, the Court held that the Ninth Circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the Court to apply intermediate scrutiny.

The Court held that Section 32310 did not survive strict scrutiny review. The Court held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the Court found that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method — a statewide blanket ban on possession everywhere and for nearly everyone — was not the least restrictive means of achieving the compelling interests.

The Ninth Circuit declared that even if intermediate scrutiny were to apply, Section 32310 would still fail; while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.

The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s summary judgment in favor of the Owners and held that Section 32310 violated the Second Amendment.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 26, available at www.jones-mayer.com.


  1. Plaintiff did not establish that Defendant’s reasons for terminating his employment were pretextual because Defendant provided evidence of legitimate, nonretaliatory explanations for its action.

Vincent v. City of Cal. City, 2020 U.S. App. LEXIS 25554 (9th Cir. Aug. 12, 2020)

Facts: In March 2017, the City of California City (“City”) extended a conditional offer of employment for the position of Fire Chief to Plaintiff Justin Vincent, subject to one year of probation. Vincent was sworn in as the City’s Fire Chief in May 2017. Vincent was allegedly involved in a number of incidents, including “gossiping” with City employees about the mayor’s alleged affair and Vincent’s public confrontation with two City residents in city hall. 

In December 2017, Vincent was given a termination letter which stated he was being terminated due to his failure to satisfactorily complete probation. He filed suit in federal District Court against the City for unlawful retaliation under California Labor Code section 1102.5. The City moved for summary judgment, which the District Court granted. Vincent appealed.

Held: The Ninth Circuit Court of Appeals found that Vincent had not established that the City’s reasons for terminating his employment were pretextual as Vincent contended. The City provided evidence of “legitimate, nonretaliatory explanation[s]” for its action, Hawkins v. City of Los Angeles, 40 Cal. App. 5th 384, 252 Cal. Rptr. 3d 849, 855 (Cal. App. 2019), including Vincent’s “gossiping” with city employees about the mayor’s alleged affair and Vincent’s public confrontation with two city residents in city hall. Accordingly, Vincent bore the burden of demonstrating that the City’s explanations were flawed by “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions . . . that a reasonable factfinder could rationally find [the explanations] unworthy of credence.” Id. at 856-57.

Vincent asserted that the City’s explanation based on “gossiping” was pretextual because the mayor’s alleged affair was common knowledge. The Court of Appeals explained, however, that even if the affair was well-known, Vincent had been instructed by the City Manager to “stop spreading the rumor.” Vincent nevertheless discussed the rumor with his staff and others, and another employee reported that Vincent discussed the rumor loudly in city hall.

Vincent asserted that the City’s next explanation, that Vincent was terminated because two city residents filed a complaint with the city manager after having a confrontation with Vincent in city hall, was pretextual because part of their complaint concerned Vincent’s allegations that one of the residents had attempted to bribe Vincent. However, the Court noted that the record established that the complaint set forth several allegations, including that Vincent had threatened to give false information to the residents’ insurance company and that Vincent, in uniform and on duty, went to a woman’s home and publicly demanded that she stop discussing Vincent’s affairs.

The Court found that because no evidence suggested that the City’s termination decision based on Vincent’s “gossiping” and his confrontation with two residents was pretextual, the City was entitled to summary judgment. The Ninth Circuit accordingly affirmed.

  1. Fair Employment and Housing Act discrimination claims cannot survive summary judgment without evidence disputing credible showing of innocent motive.

Arnold v. Dignity Health, 53 Cal. App. 5th 412 (3rd Dist. 2020)

Facts: Virginia M. Arnold, an African-American woman, was either 55 or 56 years old when she was hired to work by Dignity Health (“Dignity”) as a medical assistant in 2003. In August 2008, Arnold received a warning, included on her performance evaluation, for failing to wipe a patient’s identifying information off a urine cup. In October 2011, Roxanne Slaugh, Arnold’s supervisor, told her she was not permitted to work off the clock, and instructed Arnold regarding the process of marking a task “done” only after the task was actually completed. In June 2012, Slaugh issued Arnold a warning for inappropriate conduct for acting in a disruptive, disrespectful, and aggressive manner toward a coworker. In September 2012, Slaugh issued Arnold a “final” warning and a three-day suspension for Arnold’s alleged failure to follow the clinic process for addressing scheduling errors or concerns by alerting Slaugh as she had been instructed.

In December 2012 Arnold filed a grievance contending she felt harassed by Slaugh and was not being treated equally. The grievance did not state specific instances of harassing or discriminatory conduct. No documented conclusions resulted from this filing. In a matter perhaps unrelated to the grievance, Arnold would later allege that she had complained at some point to Slaugh that two other African-American employees with whom Arnold was associated had been mistreated.

In June 2013, Denise Boroughs-Fitch replaced Slaugh as Arnold’s supervisor. In July 2013, Boroughs-Fitch and Tiffany Tidwell, senior employee and labor relations consultant, met with Arnold concerning a urine cup found in the trash that allegedly still contained patient health information because Arnold did not wipe the urine cup clean. They also found that Arnold was not willing to take responsibility for her actions and was not being honest in the investigation because she blamed her coworker for the incident.

Because Arnold was on a final warning and had previously been disciplined regarding patient privacy, Tidwell and Boroughs-Fitch deemed termination the appropriate next step. Boroughs-Fitch set forth the reasons for Arnold’s termination in a letter stating Arnold’s employment was being terminated for her (1) failure to safeguard personal health information, a HIPAA violation, (2) display of inappropriate materials in the workplace, (3) careless performance of duties, (4) failure to communicate honestly and be truthful during the course of the investigation, and (5) failure to take responsibility for her actions. The letter also stated that while the current violations independently warranted termination, Boroughs-Fitch also considered the prior warnings and suspension.

Shelley Noyes was the executive director at Arnold’s workplace during this period. According to Arnold, there were three instances in which Noyes commented on her age, expressing surprise at Arnold’s age and the fact that Arnold had not retired. The first occurred sometime between 2011 and 2013. Noyes had learned that it was recently Arnold’s birthday, and she said to Arnold, “Oh, I never knew you were that old.” Next Noyes said, “Oh, how come you haven’t retired?” Then Noyes and Arnold discussed working into their eighties. Arnold also recalled that Slaugh made three comments about her age, and also inquired why Arnold had not retired.

After her employment was terminated, Arnold filed a complaint alleging, among others, a cause of action against Dignity for discrimination in violation of the Fair Employment and Housing Act (“FEHA”) based on her age and association with African-Americans.

The trial court granted Dignity’s motion for summary judgment. The trial court concluded Dignity provided evidence of legitimate, non-discriminatory reasons for Arnold’s termination and, in rebuttal, Arnold failed to offer any evidence that defendants’ actions were discriminatory, harassing, or retaliatory. Arnold appealed the grant of summary judgment.

Held: The California Third District Court of Appeal explained that FEHA makes it unlawful for an employer “‘because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, … to discriminate against the person … in terms, conditions, or privileges of employment.’” (Horsford v. Board of Trustees of California State University (5th Dist. 2005) 132 Cal.App.4th 359, 373, quoting Government Code section 12940(a).) Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying California statutes. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354.)

Arnold contended that the trial court erred by concluding she failed to raise a triable issue of material fact regarding pretext or regarding the truth of defendants’ stated reasons for terminating her employment. She asserted that she presented evidence showing defendants’ facially valid reasons for termination were unworthy of credence, and argued that she presented substantial evidence of age and association discrimination, including that her supervisors repeatedly “verbalized age discriminatory language with an intimidating tone,” did not respond to her complaint of discrimination, and did not respond to her complaints regarding racially prejudiced behavior toward other African-American employees.

The Court of Appeal explained that, in a FEHA discrimination claim, the discrimination at issue must be a substantial motivating factor in the adverse employment decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.) In other words, “there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions.” (Guz, at p.361.)

Arnold contended that her claim for age discrimination was supported by the comments made by Noyes and Slaugh regarding her age and Dignity’s failure to appropriately respond to her human resources complaint regarding discrimination. Rejecting this contention, the Court explained that Arnold presented no evidence that either Noyes or Slaugh was materially involved in the decision to terminate her employment. At the time Arnold was terminated, Slaugh was not Arnold’s supervisor, and even Arnold acknowledged, “Noyes is not in the chain of command regarding my discipline. Noyes was not in the [human resources] department and she was not part of the group that was evaluating me.” Thus, any comments made by Noyes or Slaugh regarding Arnold’s age did not support the conclusion that Arnold was terminated based on discriminatory animus. (Accord King v. United Parcel Service, Inc. (3rd Dist. 2007) 152 Cal.App.4th 426, 433-434 [decision maker must be affected by bias].)

Moreover, the Court found that even if Noyes were involved in the decision to terminate Arnold’s employment, there was insufficient evidence to support the conclusion that her comments were made with discriminatory animus. Noyes’ first comments occurred at or around Arnold’s birthday, a natural and appropriate occasion for discussing a person’s age and future plans. Noyes’s second comments expressed surprise at Arnold’s age, which the Court did not find indicative of animus where it was undisputed that Arnold did not discuss her age and had the physical appearance of a much younger person. The Court found Noyes’ third comment was similarly benign. The Court also observed that Arnold did not provide any specific examples of discrimination in her grievance.

Liberally construing Arnold’s evidence opposing summary judgment, the Court found that her showing remained “too weak to raise a rational inference that discrimination occurred.” (Guz, supra, 24 Cal.4th at p. 362.) The Court therefore concluded that Arnold failed to make a sufficient showing to support her contention that defendants terminated her employment based of her age.

The Court also found that Arnold’s evidence presented to show discrimination based on her association with African-Americans did not suffice to establish a triable issue of material fact. Arnold alleged that she complained to Slaugh about her coworker’s mistreatment and that no one from Dignity followed up with her about her complaint. The Court noted that Slaugh was not part of Arnold’s termination, and there was no evidence that anyone involved in the decision to terminate Arnold’s employment knew about the complaint or that it factored into their determination. The Court therefore found that the trial court did not err in granting Dignity’s summary adjudication as to Arnold’s claim for discrimination based on her association with African-Americans.

The Third District Court of Appeal accordingly affirmed. 


  1. Proposition 64 did not decriminalize the possession of cannabis in a penal institution.

People v. Herrera, 52 Cal. App. 5th 982 (6th Dist. 2020)

Facts: In 2016, voters enacted Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act.[26] The intent of the Act included “[p]ermit[ting] adults 21 years and older to use, possess, purchase and grow nonmedical marijuana within defined limits for use by adults 21 years and older as set forth in [the Act].”[27]

Proposition 64 added section 11362.1 to the Health and Safety Code which generally allows the possession, smoking, and ingestion of cannabis, as well as the cultivation of cannabis plants. Section 11362.1(a) provides in part:

“(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:

“(1) Possess … not more than 28.5 grams of cannabis not in the form of concentrated cannabis;

“(4) Smoke or ingest cannabis or cannabis products…”

The phrase “notwithstanding any other provision of law” in Section 11362.1(a) signals an intent for the statute to prevail over all contrary law. However, Section 11362.1(a) also states that a person’s ability to possess, smoke, or ingest cannabis is “[s]ubject to Sections 11362.2, 11362.3, 11362.4, and 11362.45.” Relevant here, Section 11362.45 states: “Section 11362.1 does not amend, repeal, affect, restrict, or preempt … [¶] … [¶] (d) Laws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation or the Division of Juvenile Justice, or on the grounds of, or within, any other facility or institution referenced in Section 4573 of the Penal Code.” (Section 11362.45(d), italics added.) The facilities referenced in Penal Code section 4573 include state prisons and county jails. (Penal Code section 4573(a).)

Jesse Herrera’s Conviction

In July 2017, a deputy sheriff assigned to the county jail observed a group of inmates, including defendant Jesse Herrera in a dorm. The deputy smelled marijuana upon approaching the group. Surveillance tape indicated that defendant had thrown something behind him the few seconds that the deputy was not watching. The deputy conducted a search and found a bag of marijuana in the area where it appeared from the surveillance video that defendant had dropped something. Subsequent testing revealed the bag contained 0.59 grams of marijuana.

Herrera was charged by amended information with possession of a controlled substance, marijuana, in jail (Penal Code section 4573.6(a)) along with another charge. The amended information also alleged that Herrera had suffered a prior strike conviction, and that he had served four prior prison terms. In December 2018, the jury found Herrera guilty of possession of marijuana in jail under Section 4573.6(a). The jury found true allegations that Herrera had previously been convicted of robbery, and that he had served three prior prison terms. He was sentenced to eight years in prison, consisting of six years for possession of marijuana in jail and consecutive terms of one year for two of the prison priors under Section 667.5, former subd. (b). Herrera appealed.

Held: The California Sixth District Court of Appeal noted that the issue of whether Proposition 64 decriminalized the possession of cannabis in prison or jail is currently pending before the California Supreme Court. In People v. Raybon (3rd Dist. 2019) 36 Cal.App.5th 111, review granted August 21, 2019, S256978, the Third District held that possession of less than one ounce of cannabis in prison is no longer a crime under Section 4573.6 after the passage of Proposition 64. (Raybon, supra, at pp. 119, 126.) However, the First District in People v. Perry (1st Dist. 2019) 32 Cal.App.5th 885 concluded that possession of cannabis in prison remains a crime under Section 4573.6 after the passage of Proposition 64. (Perry, supra, at p. 887; see also People v. Whalum (4th Dist. 2020) 50 Cal.App.5th 1, 3 [Fourth District concluding “that the crime of possessing unauthorized cannabis in prison in violation of Penal Code section 4573.8 was not affected by Proposition 64”], petn. for review pending, petn. filed July 7, 2020.)

On appeal, Herrera contended that his conviction under Section 4573.6(a) must be reversed because the possession of a small amount of cannabis in jail was no longer a crime after the passage of Proposition 64. The Attorney General contended that Proposition 64 did not affect the law prohibiting possession of cannabis in custodial institutions.

Section 4573.6(a), which states in part: “Any person who knowingly has in his or her possession in any state prison, … or in any county … jail, … any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, …” without proper authorization “… is guilty of a felony … .” (Section 4573.6(a), italics added.) Division 10 of the Health and Safety Code comprises the California Uniform Controlled Substances Act.[28] Chapter 2 contains schedules listing controlled substances subject to the provisions of division 10, and chapter 6 describes the offenses associated with controlled substances.[29] Cannabis is listed in Schedule I.[30]

Section 11362.45 provides that the general provision authorizing adult possession of cannabis “does not amend, repeal, affect, restrict, or preempt … [¶] … [¶] … [l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any” prison or jail. (Section 11362.45(d); italics added.) The Sixth District explained that the issue here was whether Penal Code section 4573.6(a) was a “[l]aw[] pertaining to smoking or ingesting cannabis” in jail within the meaning of Health and Safety Code section 11362.45(d). If so, the Court explained, then Proposition 64 did “not amend, repeal, affect, restrict, or preempt” Section 4573.6(a), and possession of cannabis in jail remained a crime.

The Sixth District observed that although Section 4573.6(a) prohibits “possession” of controlled substances in a penal institution and does not expressly address smoking or ingesting controlled substances, Section 11362.45(d) carves out from Proposition 64’s legalization of cannabis “[l]aws pertaining to smoking or ingesting” cannabis in a penal institution. (Section 11362.45(d), italics added.) “Definitions of the term ‘pertain’ demonstrate its wide reach: It means ‘to belong as an attribute, feature, or function’ [citation], ‘to have reference or relation; relate’ [citation], ‘[b]e appropriate, related, or applicable to’ [citation].” (Perry, supra, 32 Cal.App.5th at p. 891.) The Court explained that considering the “wide reach” of the phrase “‘pertaining to,’” “[w]e would be hard pressed to conclude that possession of cannabis is unrelated to smoking or ingesting the substance.” (Ibid.) The Court added that “[i]n the context of possession in prison, it is particularly obvious that possession must ‘pertain’ to smoking or ingesting.” (Perry, supra, at p. 892.)

The Court also noted that the three subdivisions preceding subdivision (d) of Section 11362.45 used the phrase “making it unlawful to” in carving out certain conduct from Proposition 64’s cannabis legalization, unlike the “pertaining to” in subdivision (d) at issue here. The Court stated that this use of the phrase “pertaining to” in subdivision (d) indicated an intent to carve out laws beyond those that only make unlawful or only prohibit the smoking or ingesting of cannabis. Finally, the Court noted determined that Section 11362.45(d) must be construed as having a broader application than to just a law that expressly prohibits the smoking or ingesting of cannabis in prison or jail, as no such law exists. In this context, and in view of the wide application of Section 11362.45(d) with its “pertaining to” language, the only reasonable construction of the carve out was that it encompassed a law “pertaining to smoking or ingesting” cannabis in prison or jail, such as Penal Code section 4573.6’s prohibition on the possession of controlled substances in prison or jail.

In sum, the Sixth District concluded that possession of a controlled substance in jail under Penal Code section 4573.6(a) is a law pertaining to smoking or ingesting cannabis in prison or jail, and Herrera was therefore properly convicted of violating Penal Code section 4573.6(a) for possession of cannabis in jail.[31]

  1. Plaintiff alleged that its cultivation and possession of marijuana were fully compliant with state laws; thus, marijuana seized was not contraband, and plaintiff could assert valid claim seeking its return.

Granny Purps, Inc. v. Cnty. of Santa Cruz, 53 Cal. App. 5th 1 (6th Dist. 2020)

Facts[32]: Plaintiff Granny Purps, Inc., operates a medical marijuana dispensary in Santa Cruz County that grows and provides medical marijuana to its 20,000 members. Plaintiff conducts its activities in compliance with state laws governing the production and distribution of marijuana for medical purposes.

The County of Santa Cruz restricts cannabis cultivation. A local ordinance prohibits any medical cannabis operation from cultivating more than 99 plants, while plaintiff’s dispensary was growing thousands of marijuana plants. Law enforcement officers from the County sheriff’s office seized about 1,800 plants from the dispensary in June 2015. The County also issued Plaintiff a notice of ordinance violation. Several months later, law enforcement officers again went to the dispensary and took about 400 more marijuana plants.

Plaintiff sued the County and two sheriff’s deputies in July 2016. The complaint asserted claims for monetary damages, alleging causes of action for conversion, trespass, and inverse condemnation. Plaintiff also sought an order requiring the County to return the seized cannabis plants, by way of a writ of mandate, injunctive relief, and a cause of action for specific recovery of property. Plaintiff also requested a judgment declaring that the County cannot lawfully seize cannabis plants from a dispensary operating in compliance with state medical marijuana laws.

The County demurred to the complaint on the grounds that it failed to state a valid cause of action and the claims were time barred. The County asserted that it had no obligation to return the plants since the dispensary violated the ordinance. The trial court sustained the demurrer without leave to amend and entered judgment for defendants. Plaintiff appealed, seeking, among other things, an order compelling the county to return the seized marijuana plants.

Held: The California Sixth District Court of Appeal explained that generally, a government agency cannot retain an individual’s property without providing due process of law. (Ensoniq Corp. v. Superior Court (6th Dist. 1998) 65 Cal.App.4th 1537, 1548–1549.) Someone whose property is wrongfully withheld by the government may bring a cause of action specifically for an order compelling return of the property. (Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 121–123.) However, an exception to this general rule is the state can retain property that is illegal to possess, whether it was lawfully seized or not. (Ensoniq Corp., supra, 65 Cal.App.4th 1537, 1548.) Because the illegal property exception applies only where the property in question is per se illegal to possess,[33] the Court determined that it must determine if the seized marijuana was contraband per se.

The County asserted that because Plaintiff’s dispensary violated a local ordinance restricting cannabis cultivation within the County, the marijuana was illegally possessed and Plaintiff had no right to its return.

The Court explained that the Compassionate Use Act of 1996[34] made marijuana “‘possession and cultivation … noncriminal for a qualified patient or primary caregiver.’” (City of Garden Grove v. Superior Court (4th Dist. 2007) 157 Cal.App.4th 355, 372.) The passage of the Medical Marijuana Program Act[35] decriminalized medical marijuana-related activities beyond mere possession. The Legislature “exempted those qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes from criminal sanctions for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for the storage, distribution of any controlled substance for sale, and the laws declaring the use of property for these purposes a nuisance.” (People v. Urziceanu (3rd Dist. 2005) 132 Cal.App.4th 747, 785.)

The Court declared that a valid local ordinance restricting the number of marijuana plants that can be cultivated did not change the status of medical marijuana under state criminal law (nor could it, as any attempt to do so would be preempted). (People v. Ahmed (1st Dist. 2018) 25 Cal.App.5th 136, 143.) The Court stated that possession of medical cannabis, by those qualified according to state law, was not a crime. This necessarily meant that marijuana possessed for medical purposes in compliance with state standards, as Plaintiff alleged,[36] was not contraband per se. The Sixth District Court of Appeal reversed and remanded, stating that the causes of action seeking return of property survived demurrer.


  1. California Constitution does not permit Department of Corrections and Rehabilitation to adopt regulations denying eligibility for early parole consideration based solely on nonviolent felony conviction for indecent exposure.

In re Febbo, 52 Cal. App. 5th 1088 (4th Dist. 2020)

Facts: Proposition 57, enacted by the voters in November 2016, amended the California Constitution to permit early parole consideration for “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison.” (Cal. Const., art. I, section 32(a)(1).) Proposition 57 was a response to federal court orders requiring California to implement measures to reduce its prison population.

Proposition 57 granted the Department of Corrections and Rehabilitation (“CDCR”) authority to “adopt regulations in furtherance of these provisions.” (Cal. Const., art. I, section 32(b).) Pursuant to this authority, CDCR promulgated and adopted regulations which rendered ineligible for early parole consideration any inmate who “is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code.” (Cal. Code Regs., tit. 15, Section 3491(b)(3).) This ineligibility applied categorically to any and all offenses requiring registration as a sex offender, regardless of whether or not they might be characterized as violent.

Every person convicted of a crime identified in Penal Code section 290(c) is required to register as a sex offender with the relevant branch of local law enforcement while that person resides or works in California. (Id., subd. (b).) California Code of Regulations, title 15, section 3490(c) defines violent felony as “a crime or enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code.” Most, but not all, of the crimes listed in Penal Code section 290(c) are also listed as violent offenses in Section 667.5(c). Although indecent exposure is listed as an offense in Section 290(c), indecent exposure is not listed as a violent offense under Section 667.5(c)

CDCR maintained that public safety concerns justified excluding all sex offenders for early parole consideration.[37] CDCR observed that some offenses requiring sex offender registration are not considered violent felonies but do involve “some degree of physical force, coercion, or duress with the victim, often a minor.”[38] Examples of such offenses are “incest, pimping of a minor under sixteen, sexual battery, and lewd and lascivious acts with a fourteen or fifteen year old victim where the perpetrator is at least ten years older.”[39]

In July 2016, a jury convicted Rick Ryan Febbo of three counts of felony indecent exposure in violation of Penal Code section 314(1). He was sentenced to a determinate term of six years eight months in prison and is currently serving that term. Febbo previously had been convicted of indecent exposure in 2007 and 2009. Due to his prior and current convictions for indecent exposure, Febbo must register as a sex offender in accordance with Penal Code section 290(c).

In April 2018, Febbo filed an inmate/parolee appeal to the CDCR by which he sought to confirm that he would be given an early parole hearing after serving the first two years of his sentence. The appeal was rejected. His subsequent appeal to the Board of Parole Hearings (“BPH”) to consider Febbo for an early parole hearing under Proposition 57 was also rejected. The BPH wrote that because Febbo had been convicted of a sexual offense requiring his registration under Penal Code section 290, he was therefore not eligible for the nonviolent parole process. Thereafter, Febbo’s inmate/parolee appeal formally requesting an early parole hearing under Proposition 57 was also rejected.

Febbo filed a petition for writ of habeas corpus in the trial court. He alleged the CDCR regulations making nonviolent sex offenders ineligible for early parole consideration under Proposition 57 were unlawful and “a clear violation of the California Constitution, as amended by Proposition 57.” The trial court granted Febbo’s petition for writ of habeas corpus, finding the CDCR’s Section 3491(b)(3) regulation “excluding inmates … from early parole consideration is inconsistent with California Constitution, article I, [section] 32, and is therefore invalid.” As relief, the trial court ordered the CDCR not to exclude nonviolent sex offenders from early parole consideration “based on such status alone” and to evaluate Febbo for early parole consideration within 60 days. The CDCR appealed from the order granting Febbo’s petition for writ of habeas corpus.

Held: The California Fourth District Court of Appeal considered the text of Section 32(a)(1), part of the section added to the Constitution due to the passage of Proposition 57. “Section 32, subdivision (a) of article I of the California Constitution unequivocally states that any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Alliance for Constitutional Sex Offense Laws v. Department of Corrections & Rehabilitation (3rd Dist. 2020) 45 Cal.App.5th 225, 234 (italics kept), review granted May 27, 2020, S261362.) The Fourth District found the Section 32(a)(1)’s structure and meaning unambiguous. The Fourth District noted that Alliance held that the CDCR exceeded its rulemaking authority by categorically excluding from eligibility for early parole consideration all inmates serving sentence for current nonviolent sex offenses requiring registration under Penal Code section 290. (Id., at pp. 228, 231–234.)

The Court then turned to determining whether indecent exposure is a nonviolent felony offense under Section 32(a)(1). Section 32(a)(1) does not define the term “nonviolent felony offense” undefined or refer to any other constitutional or statutory provision to supply a definition. The Court determined that when CDCR’s regulation at Title 15, section 3490(c) was read in conjunction with Title 15, section 3491(b)(3), “[t]he effect is that the term nonviolent felony offense under section 32(a)(1) means any crime or enhancement that is not identified in section 667.5(c) or for which registration as a sex offender is not required under Penal Code sections 290 through 290.024.” Here, Febbo’s indecent exposure offense was not listed as a violent offense in Section 667.5, although he was required to register as a sex offender under Section 290(c).

To help determine the meaning of the terms nonviolent felony offense and violent felony, the Fourth District considered the crimes identified in Section 667.5(c) as violent felonies, a federal provision’s definition of the term “crime of violence,” and case law. The Court determined that these definitions shared common elements: Violence or a violent crime involves physical force, sexual contact, physical injury or destruction of property, fear, coercion, or duress. Based on this determination, the Court found that indecent exposure was not a violent crime under any of the given definitions. The Court noted that under Penal Code section 314, a person commits indecent exposure if that person: “1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or [¶] 2. Procures, counsels, or assists any person so to expose himself or … to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts.” The Court determined that none of the conduct punishable under Penal Code section 314 involved physical contact, use of physical force against persons or property, infliction of physical injury or property damage, use of fear, duress, sexual contact, coercion, or threats. Thus, Febbo could not be denied eligibility for early parole consideration solely based on his convictions for that offense.

In sum, the Fourth District concluded that the term nonviolent felony offense in Section 32(a)(1) was unambiguous and included the crime of indecent exposure under Penal Code section 314. The CDCR regulations were therefore invalid in denying early parole eligibility solely on the ground the inmate committed that offense. However, the Court noted that Section 32(a)(1) only made an inmate eligible for early parole consideration and did not necessarily guarantee that the inmate would be paroled. That decision remained with the BPH, which could consider an inmate’s full criminal history, including prior sex offenses, in deciding whether to grant parole.[40]

Accordingly, the Fourth District Court of Appeal affirmed the trial court order granting the petition for writ of habeas corpus.

  1. California Supreme Court provides seven-factor test that a trial court should use in ruling on a motion to quash a subpoena duces tecum directed to a third party.

Facebook, Inc. v. Superior Court (Touchstone), 10 Cal. 5th 329 (2020)

Facts: In May 2018 in Facebook v. Superior Court (Hunter),[41] the California Supreme Court had addressed issues concerning the propriety of criminal defense subpoenas served on social media providers, including Facebook, Inc., seeking restricted posts and private messages of two of their users. In Facebook (Hunter),[42] the Court held, in part, that to the extent a subpoena duces tecum seeks a communication that had been configured as and remained public, Facebook could not assert the federal Stored Communications Act (18 U.S.C. section 2701 et seq.; “SCA”) as a shield to block enforcement of the subpoena.[43]

While that case was pending, the Supreme Court granted review in the instant case, a pretrial criminal discovery matter. Defendant Lance Touchstone[44] was charged with shooting and attempting to murder Jeffrey Renteria. A preliminary hearing was held in which Defendant’s presentation of the facts conveyed that Defendant had acted in self-defense in shooting Renteria.

Five months after the preliminary hearing, Defendant sought, before a different judge, a subpoena duces tecum for all of Renteria’s Facebook communications (including restricted posts and private messages) before and after the shooting, and requested that Facebook preserve all such communications. Defendant contended that he needed all electronic communications by Renteria in order to prepare his defense. Specifically, Defendant contended that he had a viable claim of self-defense against Renteria, and that he required the communications to investigate and present that affirmative defense. Secondarily, or alternatively, Defendant sought to prepare to impeach the character of the anticipated main prosecution witness against him—the victim, Renteria—if Renteria was to be called by the prosecution at trial. Defendant supported his demands for Renteria’s Facebook communications by offering a sealed declaration describing and quoting certain public Facebook posts made by Renteria after the shooting that, Defendant asserted, revealed Renteria’s violent general thoughts.

Defendant also asserted that, to the extent the SCA allowed Facebook to block his subpoena, the SCA must be found to violate his federal Fifth Amendment due process rights, along with his Sixth Amendment rights of confrontation, cross-examination, and counsel—and thus the SCA was unconstitutional as applied to him.

The trial judge ordered Facebook to comply with the subpoena or appear in court to address any objection to it and to preserve the account and related stored communications. Facebook preserved Renteria’s account as directed, and then moved to quash the subpoena. Defendant argued in his brief opposing the motion to quash that he had established the requisite “plausible justification” (see, e.g., City of Alhambra v. Superior Court (2nd Dist. 1988) 205 Cal.App.3d 1118, 1134) for acquiring any restricted posts and private messages, and that the motion to quash should be denied. In support, Defendant invited the trial judge to “review … the specific plausible justifications establishing [Defendant’s] right to compel the disclosure of documents” set out in a second and also sealed[45] declaration in opposition to the motion to quash filed simultaneously with the opposition brief.

The trial court found that Defendant established good cause to acquire the communications requested from Facebook and denied Facebook’s motion to quash.

Facebook sought a peremptory writ of mandate directing the trial court to vacate its order denying the motion to quash the subpoena and to enter a new order granting the motion. The Fourth District Court of Appeal observed that Facebook (Hunter) was then pending before the Supreme Court. The Court of Appeal rejected Defendant’s claims and denied him pretrial discovery. The Fourth District directed the trial court to vacate its order denying Facebook’s motion to quash, and to enter a new order granting the motion.

Held: The Supreme Court of California granted review to address the propriety of the criminal defense subpoena served on Facebook. In supplemental briefing, Defendant maintained that the subpoena duces tecum upon Facebook was supported by good cause, and that the trial court properly denied Facebook’s motion to quash. Facebook and the District Attorney contended that Defendant failed to state sufficient justification for acquiring the sought communications, and that the subpoena was not supported by good cause.

The Supreme Court explained that under Penal Code section 1326(a), various officials or persons—including defense counsel, and any judge of the superior court—may issue a criminal subpoena duces tecum. Unlike civil subpoenas, there is no statutory requirement of a “‘good cause’” affidavit before a criminal subpoena may be issued. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535; City of Woodlake v. Tulare County Grand Jury (5th Dist. 2011) 197 Cal.App.4th 1293, 1301 [no requirement of a “good cause affidavit” “[i]n criminal matters”].)

The Court explained that although no substantial showing was required to issue a criminal subpoena duces tecum, in order to defend such a subpoena against a motion to quash, the subpoenaing party must at that point establish good cause to acquire the subpoenaed records. (See Pitchess, supra, 11 Cal.3d at p. 537. [the defendant must show “some cause for discovery other than ‘a mere desire for the benefit of all information.’”].)

The Supreme Court listed seven factors that should be considered by a trial court in considering whether good cause has been shown regarding the enforcement of a criminal subpoena duces tecum issued to a third party that has been challenged by a motion to quash. This seven-factor test was based on a list discussed in the Alhambra opinion[46] and on text from a leading criminal discovery treatise.[47] The Court set forth these seven “Alhambra factors” as follows:

(1) Has the defendant carried his burden of showing a “‘plausible justification’” for acquiring documents from a third party[48] by presenting specific facts demonstrating that the subpoenaed documents are admissible or might lead to admissible evidence that will reasonably “‘assist [the defendant] in preparing his defense’”?[49] Or does the subpoena amount to an impermissible “‘fishing expedition’”?[50]

(2) Is the sought material adequately described and not overly broad?

(3) Is the material “reasonably available to the … entity from which it is sought (and not readily available to the defendant from other sources)”?[51]

(4) Would production of the requested materials violate a third party’s “confidentiality or privacy rights” or intrude upon “any protected governmental interest”?[52]

(5) Is defendant’s request timely? Or, alternatively, is the request premature?

(6) Would the “time required to produce the requested information … necessitate an unreasonable delay of defendant’s trial”?[53]

(7) Would “production of the records containing the requested information … place an unreasonable burden on the [third party]”?[54]

For the instant case, the Court elaborated on two of the seven factors. First, the Court focused on “plausible justification,” citing Ballard v. Superior Court (1966) 64 Cal.2d 159 and Hill, supra, 10 Cal.3d 812. In Ballard, the Supreme Court’s first decision articulating the plausible justification standard, the Court measured the defendant’s stated justification for acquiring the sought information against the legal claims (in that case, asserted violations of the rights to counsel and to remain silent) pursuant to which the defendant urged the information would be relevant. In Hill, the Court had expressed that each legal claim that a defendant advances to justify acquiring and inspecting sought information must be scrutinized and assessed regarding its validity and strength.

Consistent with the approach undertaken in Ballard and Hill, in assessing the current Defendant’s primary basis for plausible justification to acquire and inspect the sought restricted posts and private messages (to support a claim of self-defense), the Supreme Court explained that an appropriate inquiry would focus on the facts as alleged in the briefings (that Defendant, the District Attorney, and Facebook filed with the Court) and also as reflected in the preliminary hearing transcript in order to assess whether a claim of self-defense was sufficiently viable to warrant that significant intrusion.

In assessing the Defendant’s secondary (and, if the self-defense-claim justification failed, alternative) basis for plausible justification in the present case (to impeach prospective witness Renteria), the Court explained that an appropriate inquiry would consider whether such a significant intrusion was warranted and necessary to facilitate the contemplated impeachment. The Court stated that the analysis should be informed by the circumstance that Defendant had already acquired, not only Renteria’s public posts (which, Defendant asserted, contain substantial relevant information) but also Renteria’s probation reports, which detailed his prior convictions and contained other substantial related impeachment information. The Court added that when, as here, a subpoena seeks restricted social media posts and private messages, in the absence of an apparent relationship between the underlying crime and such communications,[55] a trial court should examine even more closely the proffered showing of plausible justification in support of such a privacy intrusion.

The Supreme Court also elaborated on the Alhambra factor concerning third-party privacy/government interest intrusions. The Court observed that when considering the enforceability of a criminal defense subpoena duces tecum, “[t]he protection of [the subject of a subpoena’s] right to be free from unreasonable search and seizure constitutes a ‘legitimate governmental interest.’” Pacific Lighting, supra, 60 Cal.App.3d 552, 566-567. The Court declared that an appropriate assessment of a social media user’s rights implicated by such a subpoena would take into account the likelihood that the asserted connection between an underlying crime and any sought private communications actually exists.

In Facebook (Hunter), the Supreme Court found that there was significant evidence that the underlying shooting and resulting homicide may have related to, and stemmed from, social media posts; therefore, the nexus, and justification for intruding into a victim’s or witness’s social media posts (public and restricted, and/or private messages), was substantial. Here, the Court questioned whether there was any similar substantial connection between the victim’s social media posts and the alleged attempted murder by Defendant. Accordingly, the Court stated that plausible justification—which must in all cases be “so substantiated as to make the seizure constitutionally reasonable” (Pacific Lighting, supra, 60 Cal.App.3d at p. 567)—must be subject to even closer examination in the absence of an apparent relationship between the alleged crime and the private communications sought for disclosure.

The Supreme Court noted that the trial court judge who conducted the hearing on the motion to quash found good cause for the subpoena duces tecum and denied the motion. The Supreme Court observed, however, that neither the reporter’s transcript of the hearing, nor the resulting minute order, reflected that the trial court expressly considered and balanced the Alhambra factors.[56] The trial court did not expressly mention whether defendant had shown plausible justification for acquiring crime victim Renteria’s restricted posts and private messages, nor consider other Alhambra factors – including the adequacy of the description/overbreadth, availability of the sought material from other sources, privacy/confidentiality and constitutional concerns, timeliness, potential for delay of trial, and asserted undue burden on a producing third party. The Supreme Court stressed that especially at the time when ruling on a motion to squash a subpoena, the judicial officer must assess and balance such factors. Moreover, the Court cautioned trial courts against readily allowing a defendant seeking to enforce such a subpoena to proceed, as was done here, ex parte and under seal.

The Supreme Court concluded that the trial court below abused its discretion when ruling on the motion to quash in failing to apply the seven-factor Alhambra test. With regard to the constitutional and other issues potentially presented by this case, the Supreme Court explained that it was “generally reluctant to address significant substantive legal issues when, due to underlying factual and related problems, it may prove unnecessary to do so.” The Court added that it was especially disinclined to resolve the important constitutional, statutory, and related issues addressed in the briefs when the underlying subpoena might not be enforceable because of the questions concerning whether the subpoena was supported by good cause.

Accordingly, the Supreme Court directed the Court of Appeal to vacate the trial court’s denial of the motion to quash and instructed the trial court to reconsider that motion consistent with the Court’s guidance in this case.

The Supreme Court briefly addressed the issue of whether Facebook was covered by the SCA. Defendant and the District Attorney asserted that Facebook’s business model placed it outside key provisions of the SCA and rendered it subject to an enforceable state subpoena. Defendant and the District Attorney set forth a theory that Facebook’s business model of mining its users’ communications content, analyzing that content, and sharing the resulting information with third parties to facilitate targeted advertising, precluded Facebook from qualifying as an entity subject to the SCA. The Court explained that the SCA covers only two types of entities—(1) those that provide “electronic communication service” (“ECS”) and (2) those that provide “remote computing service” (“RCS”)—and the law bars such entities from divulging to others the contents of their users’ communications. Defendant and the District Attorney asserted that Facebook was neither a provider of ECS nor of RCS under the provisions of the SCA. Facebook suggested that the Supreme Court’s opinion in Facebook (Hunter) supra, 4 Cal.5th 1245 had already determined that Facebook operated as a provider of either ECS or RCS, and hence was covered by the SCA.

After stating that it would not assess the underlying merits of the business model thesis, the Supreme Court explained that, contrary to Facebook’s view, the Court had not determined whether, under the business model theory, Facebook provided either ECS or RCS, or neither, under the SCA.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 27, available at www.jones-mayer.com.

[1] People v. Wilkins, 186 Cal.App.3d 804, 809 (6th Dist. 1986) [detention occurred when officer in marked patrol car parked diagonally behind the defendant’s vehicle so it could not exit parking lot].

[2] People v. Bailey, 176 Cal.App.3d 402, 405–406 (6th Dist. 1985) [“reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer”].

[3] The Third District distinguished the instant case from People v. Garry (1st Dist. 2007) 156 Cal.App.4th 1100 in which an officer did act in the aforementioned manner.

[4] See Florida v. Bostick, 501 U.S. 429, 434–437 (1991) [no seizure when officers question a person, ask for identification, and request consent for search, so long as officers do not convey message that compliance is required].

[5] Pedro Hernandez was apparently not related to Reynaga or Jane.

[6] Melendres, 695 F.3d at 1000-01.

[7] United States v. Sandoval, 390 F.3d 1077, 1080 (9th Cir. 2004) (emphasis added)

[8] See Amaya-Ruiz v. Stewart, 121 F.3d 486, 494 (9th Cir. 1997), overruled on other grounds by United States v. Preston, 751 F.3d 1008 (9th Cir. 2014) (en banc).

[9] United States v. Miller, 984 F.2d 1028, 1031 (9th Cir. 1993) (citing Frazier v. Cupp, 394 U.S. 731, 737-39 (1969)).

[10] Dickerson, 530 U.S. at 434 (second alteration in original) (quoting Stein v. New York, 346 U.S. 156, 185 (1953)).

[11] Doody v. Ryan, 649 F.3d 986, 1011 (9th Cir. 2011) (en banc).

[12] Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (quoting Fare v. Michael C., 442 U.S. 707, 727 (1979)).

[13] Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).

[14] Diehl’s report also stated, “‘Based upon my training and experience the substance in which Cornejo had swallowed was suspected to be a controlled substance.’”


[15] Normally one of the officers who made the enforcement stop would be the “arresting officer” responsible for the paperwork but Diehl had suggested Bruno be the arresting officer as a “training opportunity,” and Hazelwood agreed. It was Bruno’s third day on the job.

[16] Defendants’ brief represented that the federal court found the plaintiffs had failed to raise a genuine issue of material fact as to whether the officers violated their constitutional rights and whether the officers were entitled to qualified immunity.

[17] See also Zelig v. County of Los Angeles, 27 Cal.4th 1112, 1128–1129 (2002).

[18] Section 3600(a), (a)(3).

[19] Section 3366(a).

[20] See 2016 Cal. Stat. 1549 section 1 (Senate Bill 1446), and Proposition 63 amending Section 32310(c).

[21] The Penal Code provides several exceptions to Section 32310, including those for active or retired law enforcement officers, see Sections 32400, 32405, 32406, 32455, armored vehicle security forces, see Section 32435, manufacture for government use, see Section 32440, holders of special weapons permits for limited purposes, see Section 32450, and use as props in film production, see Section 32445.

[22] These include the Glock pistol — sometimes referred to as “America’s gun” due to its popularity — and its variants, and the popular the Beretta Model 92.

[23] See Client Alert Vol. 32, No. 17.

[24] See Duncan v. Becerra, 742 F. App’x 218, 221-22 (9th Cir. 2018).

[25] See Client Alert Vol. 34, No. 14.

[26] Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, section 1, p. 178 (“Voter Information Guide”).

[27] Id., text of Prop. 64, section 3(l), p. 179.

[28] Health and Safety Code section 11000 et seq.

[29] See People v. Fenton, 20 Cal.App.4th 965, 968 (3rd Dist. 1993).

[30] Health and Safety Code section 11054(d)(13).

[31] The Court of Appeal nonetheless reversed and remanded due to its conclusions on another matter regarding prior prison term enhancements that had been applied to Herrera.


[32] The facts are taken from the operative first amended complaint.

[33] See Minsky v. City of Los Angeles, supra, 11 Cal.3d 113, 121 [government is a bailee of seized property unless it is shown to be contraband]; People v. Lamonte, 53 Cal.App.4th 544, 552 (4th Dist. 1997); see also U.S. v. Harrell (9th Cir. 2008) 530 F.3d 1051, 1057 [“An object is contraband per se if its possession, without more, constitutes a crime; or in other words, if there is no legal purpose to which the object could be put.”].

[34] See Health and Safety Code section 11362.5.

[35] Health and Safety Code section 11362.71 et seq.

[36] The Court stated that it must assume that Plaintiff’s allegations in the complaint that its cultivation and possession of marijuana were fully compliant with applicable state laws were true for purposes of the Court’s review, because this case came to the Court on demurrer.

[37] CDCR, Credit Earning and Parole Consideration Final Statement of Reasons (Apr. 30, 2018), p. 20.

[38] Id.

[39] Id.

[40] See Penal Code section 3040 et seq.; Cal. Code Regs., tit. 15, section 2449.32(c).

[41] 4 Cal.5th 1245 (2018).

[42] See Client Alert Vol. 33, No. 15 for discussion of Facebook v. Superior Court (Hunter).

[43] Id., at pp. 1250, 1262–1274.

[44] Defendant has no relationship to the author.

[45] The Supreme Court later unsealed the declarations for its review after the parties had not objected.

[46] Alhambra, supra, 205 Cal.App.3d 1118, 1132, 1134.

[47] Hoffstadt, California Criminal Discovery (5th ed. 2015) section 13.03, pages 390–391 (“Hoffstadt on Criminal Discovery”).

[48] Kling v. Superior Court of Ventura County (2010) 50 Cal.4th 1068, 1075; Hill v. Superior Court (1974) 10 Cal.3d 812, 817–818 [discovery context]; Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 804 [discovery context]; see also, e.g., Alhambra, supra, 205 Cal.App.3d at pp. 1124, 1128, 1131–1136 [discovery context]; Pacific Lighting Leasing Co. v. Superior Court (1976) 60 Cal.App.3d 552, 566–567 (“Pacific Lighting).

[49] People v. Superior Court (Barrett) (4th Dist.2000) 80 Cal.App.4th 1305, 1318 (“Barrett”); Alhambra, supra, at p. 1133–1134 [discovery context].

[50] Pitchess, supra, 11 Cal.3d at p. 538; Barrett, supra, 80 Cal.App.4th at p. 1320, fn. 7.

[51] Alhambra, supra, at p. 1134 [discovery context]; see also Hill, supra, 10 Cal.3d 812, 817 [posing whether the defendant “cannot readily obtain the [discovery] information through his own efforts”].

[52] Alhambra, supra, 205 Cal.App.3d at p. 1134 [discovery context].

[53] Id., at p. 1134 & fn. 17 [discovery context].

[54] Id., at p. 1134 [discovery context]; see also Facebook (Hunter), supra, 4 Cal.5th at pp. 1289–1290 [regarding asserted burdens on a social media provider].

[55] The Supreme Court had obtained and took judicial notice of the underlying preliminary hearing transcript and exhibits from the trial court. The Supreme Court found that the testimony and exhibits introduced at the preliminary hearing called into question Defendant’s asserted self-defense justification for obtaining access to Renteria’s restricted posts and private messages and Defendant’s contention that his need for access to such communications was particularly compelling and overcame any competing privacy interests of Renteria. Although the Court acknowledged this was merely preliminary hearing evidence, the Court explained that it “nevertheless constitute[d] relevant material that could properly be considered by a trial court that, having been presented with an assertedly viable claim of self-defense, is required to rule on a motion to quash a subpoena seeking restricted and private social media communications.”

[56] The Supreme Court stated, “…a number of long-established decisions have discussed, quite extensively, several of these factors, including the two that deserve special attention in the present circumstances—plausible justification, and confidentiality or constitutional interests that a person in Renteria’s position might have. In other words, as these and related cases demonstrate, the Alhambra framework is built upon a firm foundation, and the Alhambra decision itself is innovative only in the sense that it collected these principles in a handy list.”