Courtesy of James R. Touchstone, Esq.


  1. No reasonable suspicion to detain or patsearch defendant because police received general physical description of person ‘harassing’ customers, in area with significant foot traffic, when officers arrived two and a half hours later.

People v. Thomas, 2018 Cal. App. LEXIS 1130 (3rd Dist. Dec. 3, 2018)

Facts: The Sacramento Police Department received an early afternoon call in April 2016 that a “male black adult subject wearing a dark hoody, … and black pants” was harassing customers in front of a business in the Del Paso Heights area. Del Paso Heights was known as a high-crime area with a “fair amount” of foot traffic, and a high number of transients and homeless people. The call described the subject as wearing a gray, hooded sweatshirt and black pants; having “set up camp”; and having “something mental going on” because, according to the call, the subject did not understand when people spoke to him.

Over two hours after the initial call, two Sacramento Police Department officers responded to the area. Daniel Jason Thomas was sitting on the sidewalk about 70 yards away from the complaining business. He wore “bulky clothing, bulky hooded sweatshirt and bulky pants, as well as a windbreaker jacket on top of that.” No one else was in the immediate vicinity. The officers contacted Thomas, repeatedly requesting his name. Thomas refused to do so, said he did not have to speak with the officers, and began walking away. However, one officer put Thomas in a control hold, while the other handcuffed Thomas and performed a patsearch on Thomas. The officer found a knife, a narcotics pipe, and methamphetamine. Thomas was charged with carrying a concealed dirk or dagger, felony possession of methamphetamine based on a prior strike conviction, and misdemeanor possession of a smoking device. The information also alleged a prior strike conviction.

After a preliminary examination, Thomas filed a motion to suppress under Penal Code section 1538.5. Following an evidentiary hearing, the magistrate denied the motion, finding the officers had reasonable suspicion for the patsearch. In the subsequent jury trial, Thomas was convicted for possession of a dirk or dagger, possession of methamphetamine with prior convictions, and possession of drug paraphernalia. Thomas appealed, contending the detention and patsearch were not justified by reasonable suspicion.

Held: The California Third District Court of Appeal reversed the judgment. The Court explained that the Fourth Amendment to the United States Constitution protects people against unreasonable searches and seizures, and that a seizure of a person occurs whenever a police officer by means of physical force or show of authority restrains the liberty of a person to walk away.[1] A police officer can detain an individual short of having probable cause to arrest if the officer has reasonable suspicion to believe the individual is involved in criminal activity.[2] However, a “vague description does not provide reasonable suspicion to stop every person falling within that vague description.”[3] “[T]o justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.”[4]

Here, the Court recalled that the caller provided an “extremely vague and very general physical description of the person ‘harassing’ customers.” The Court noted that a more detailed description with height, weight, build, or age characteristics would potentially reasonably justify a detention. Hair or eye color was not provided, and even the clothing description was nondescript (“dark hoody, … and black pants”). The evidentiary record did not show Thomas’ behavior suggested mental health issues or had “set up camp,” as the caller had described.

The Court cited some cases which found that a general description together with a “close temporal and geographical connection between the crime and the suspects” could justify a detention. However, the Court observed that here the officers came to the scene two and one-half hours after the call was made. Moreover, the scene was a busy area with lots of foot traffic in the middle of the day. The Court found this did not suggest a close connection between Thomas and the incident. Additionally, the incident described by the caller did not describe an actual crime, but merely complained of “harassing” conduct, as opposed to any suggestion of threats, trespassing, or violence. The Court added that “[m]ere presence in a high-crime area cannot supply the necessary reasonable suspicion.”

Having found the officers did not have enough information that a crime had been committed or was about to be committed and that Thomas was the person who had committed that crime, the Court determined that there was no reasonable suspicion for the officers to detain Thomas or patsearch him. The Court concluded that the motion to suppress should have been granted, and accordingly reversed.

  1. Government’s warrantless interference in an individual’s possessory interest by impounding a vehicle without justification and done solely for deterrence is an unreasonable seizure in violation of the Fourth Amendment.

Sandoval v. Cnty. Of Sonoma, 2018 U.S. App. LEXIS 36147 (9th Cir. Dec. 21, 2018)

Facts: California Vehicle Code section 14602.6(a)(1) states that a peace officer may impound a vehicle for 30 days if the vehicle’s driver has never been issued a driver’s license. Under Section 14602.6(a)(2), the driver is entitled to notice and a storage hearing, at which the impoundment may be challenged. Section 14602.6(d)(1)(D) provides that the storage agency must release the vehicle to the driver if the seizure was unauthorized. The Sonoma County (“County”) Sherriff’s Office and the City of Santa Rosa (“City”) each interpreted section 14602.6 as applying to individuals who had never been issued a California driver’s license. The County and City impounded drivers’ vehicles for 30 days pursuant to the statute when such drivers had never been issued a California driver’s license, even if they had a license from another jurisdiction.

In January 2011, Rafael Mateos Sandoval was driving his truck when he was stopped by a County deputy sheriff for a minor traffic infraction. The deputy sheriff discovered that Sandoval did not have a California driver’s license, although he had a valid driver’s license from Mexico. The deputy sheriff decided to impound the truck under Section 14602.6, despite Sandoval’s Mexican license and even though Sandoval’s friend had a California driver’s license and offered to take possession of the vehicle. Sandoval repeatedly attempted to regain possession of his truck by contesting his impoundment at a storage hearing, by appeal to the County, and by filing a complaint with the Sheriff’s office, but was rejected at each step until the 30 days had expired and he paid the storage fees. In September 2011, City of Santa Rosa police officers stopped Simeon Ruiz at a checkpoint, found Ruiz had no California driver’s license, and impounded Ruiz’s vehicle under Section 14602.6. Ruiz also had a friend with a valid California driver’s license who could have taken possession of the vehicle, and Ruiz himself had an expired Mexican driver’s license. Like Sandoval, Ruiz was rejected in his efforts to get his truck back at the storage hearing, and finally regained possession after the 30 days expired and he paid the storage fees.

Sandoval and Ruiz then sued the County and City under 42 U.S.C. section 1983 and state civil rights law (California Bane Act, Cal. Civil Code section 52.1), arguing that the impounds violated the Fourth Amendment. The District Court granted summary judgment to the plaintiffs on their section 1983 claims, denied Sandoval and Ruiz’s attempt to certify a class, and granted summary judgment to the defendants on plaintiffs’ state law claims. The defendant municipalities appealed, arguing that the District Court erred by finding municipality Fourth Amendment violations and by finding the municipalities liable for money damages as final policymakers. The plaintiffs cross-appealed, arguing the District Court erred in granting summary judgment to the defendants on the Bane Act claims.[5]

Held: The Ninth Circuit Court of Appeals observed that Fourth Amendment to the United States Constitution protects people against unreasonable searches and seizures. The Court noted that it had previously held in Brewster v. Beck[6] that 30-day impounds under Section 14602.6 are seizures for Fourth Amendment purposes, which in this case left one matter to be decided: whether the impounds of Ruiz’ and Sandoval’s vehicles were reasonable under the Fourth Amendment. The Court explained that a warrantless seizure is per se unreasonable unless a “specifically established and well-delineated”[7] exception applied. The defendants argued the state’s interest in keeping unlicensed drivers off the road provided the “community caretaking” exception to the Fourth Amendment, but the Court reminded that the application of the exception hinged on the facts and circumstances of each case[8] – the community caretaking exception did not “categorically permit” government officials to impound private property just because state law does. The Court determined that the County and City provided no justification other than “general argument[s] that such impounds are justified as a deterrent or penalty.” Noting that deterrence rationales under the community caretaking exception did not permit “the continued warrantless seizure of a vehicle once the community caretaking function is discharged,” the Court rejected the defendant municipalities’ view on the facts here. Continued possession by a municipality simply because the driver had no valid driver’s license was not justified since the driver, instead of driving the vehicle, could have lent his vehicle to a friend, used it for storage or used the property in any other lawful manner as the property owner. Thus, the Ninth Circuit held that the District Court did not err by granting summary judgment for Sandoval and Ruiz on their Fourth Amendment claims.

The Court of Appeals then addressed then affirmed the District Court’s summary judgment for Sandoval and Ruiz on their claim that the County and the City were liable for money damages as final policymakers who caused the constitutional violations. Under Vehicle Code section 310, a “driver’s license” is defined as “a valid license to drive the type of motor vehicle or combination of vehicles for which a person is licensed under this code or by a foreign jurisdiction” (italics added). Sandoval and Ruiz had been issued Mexican driver’s licenses. The Court explained that a driver who has been issued a driver’s license in a foreign jurisdiction for the type of vehicle seized “has not driven that vehicle ‘without ever having been issued a driver’s license,’” as per Section 14602.6. The impoundment of Sandoval’s and Ruiz’s vehicles was thus not caused by state law, but by the City and County policies of impounding vehicles when the driver had never been issued a California driver’s license.


Records of investigation into high school volleyball coach’s ‘yelling and belittling’ of athletes exempt from disclosure under CPRA, as privacy interests of coach outweigh ‘public’s minimal interest in the matter.’

Associated Chino Teachers v. Chino Valley Unified School District, 2018 Cal. App. LEXIS 1192 (4th Dist. Nov. 29, 2018)

Facts: The Associated Chino Teachers (“ACT”) is the employee organization that exclusively represents teachers in the Chino Valley Unified School District (“CVUSD”). As a public high school teacher in CVUSD, Doe was a member of ACT. Doe had been with CVUSD for at least two decades without receiving any warnings or discipline relating to classroom teaching. During the fall of 2016, while Doe was coaching the girls’ volleyball team, CVUSD received two separate complaints from parents/guardians of student-athletes, regarding Doe’s conduct. They accused Doe of yelling and belittling the student-athletes in public and holding practice at their home. The complaints did not include any allegations of sexual harassment, sexual misconduct, physical violence, threats of violence, drug-related wrongdoing, criminal activity, or any other egregious misconduct. CVUSD investigated and provided the complainants with a written disposition of their complaints (“disposition letters”) in October and November 2016. Doe received a letter of warning in November 2016 and a letter of concern the following month, which were placed in Doe’s official personnel file. The disposition letters were not placed in Doe’s official personnel file. Doe resigned from the coaching position in November 2016.

A reporter subsequently requested from CVUSD, under the California Public Records Act (“CPRA”), “a copy of all complaints” made against Doe and “any documents relating to the status or resolution of those complaints.” The reporter later narrowed his request to records that demonstrated the results of CVUSD’s investigation. CVUSD informed Doe that it planned to disclose the disposition letters in response to the request. Doe objected, and ACT filed a petition of writ of mandate that sought to prevent CVUSD from disclosing the disposition letters. In February 2017, the trial court denied the petition without adding any substantive analysis or reasoning supporting its ruling. ACT appealed, arguing the disclosure of the documents was not authorized under the California Public Records Act. (“CPRA”; Government Code, section 6250 et seq.)

Held: The California Fourth District Court of Appeal concluded the CPRA does not require the production of the documents because Doe’s privacy interests outweigh the public interest in their disclosure. Reviewing the CPRA, the Fourth District noted the Supreme Court has observed that “[o]penness in government is essential to the functioning of a democracy,” and that the government should be accountable for its actions. The Court explained that the CPRA was designed to balance (1) the California Constitution’s guarantee of the fundamental and necessary right of every person in this state to access information concerning the conduct of the people’s business with (2) the individual’s right to privacy, also guaranteed by the state constitution. Section 6254 of the CPRA lists 29 categories of documents exempt from the requirement of public disclosure, with many targeted to protect individual privacy.

The Court first addressed CVUSD’s contention that ACT’s appeal was moot because CVUSD had already released the disposition letters to the complainants, making them already public records. Thus, CVUSD claimed, the right to assert a CPRA exemption to disclosure was forfeit, and the appeal was moot. The Court disagreed, citing BRV, Inc. v. Superior Court.[9] In BRV, a school district released documents to complainants there relating to the district’s investigation into sexual harassment claims made by the complainants against a superintendent. Pursuant to CPRA, a newspaper publisher had obtained some documents related to the investigation and requested additional ones, but the school district refused on CPRA exemption grounds. A Court of Appeal ultimately held that the documents should be disclosed, but not because the records became public records upon their disclosure to the complainants. The BRV Court rather weighed the superintendent’s privacy interest against the public’s right to know and found that the public’s right to know outweighed any privacy interests due to the superintendent’s position of authority as a public official and the public nature of the allegations. Here, the Fourth District Court of Appeal agreed with BRV’s method of weighing the competing interests before ordering disclosure of the documents. Doing so, the Fourth District concluded that the right to assert confidentiality was not forfeited even though the information contained in the disposition letters was the same as or like the information available elsewhere in the public domain; ACT’s appeal was therefore not moot. The Fourth District then turned to determining whether disclosure of the disposition letters was exempted by the CPRA.

ACT contended that Doe’s privacy interest outweighed any interest the public may have had in viewing the “insubstantial allegations and findings pertaining to Doe’s actions in Doe’s former position as a high school girls’ volleyball coach.” The Court explained that public records are exempt from disclosure if they (1) are “[p]ersonnel, … or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy,” under Section 6254(c) or (2) fit within a catchall exemption where “the facts of the particular case” demonstrate that “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record,” under Section 6255 (a).

Citing Versaci v. Superior Court,[10] the Fourth District explained that courts apply a three-step analysis in determining whether either of these exemptions applies. As a threshold matter, the court must determine whether the records sought constitute a personnel file or other similar file. If so, the court must decide whether disclosure of the information would compromise substantial privacy interests. Finally, the court must determine whether the potential harm to privacy interests by disclosing the documents outweighs the public interest in disclosure. The Court added that weighing these competing interests would include evaluating the extent to which the disclosure would “shed light on the public agency’s performance of its duty.”

Here, the Court first determined that the disposition letters were personnel or similar records because the disposition letters contained personal information that applied specifically to Doe, including records “relating to the employee’s performance or to any grievance concerning the employee.” (Labor Code section 1198.5(a).) The Court explained that the disposition letters did not lose Section 6254(c) disclosure protection merely because they were stored somewhere other than Doe’s personnel file. The Court next determined that the letters were “the kind of records the courts have found to implicate substantial privacy interests,” citing BRV, Marken v. Santa Monica-Malibu Unified School Dist.,[11] and Bakersfield City School Dist. v. Superior Court.[12]

The Court lastly weighed the potential privacy harms if the records were disclosed against the public interest in their disclosure. The Court noted that the Court of Appeal in Bakersfield (which also involved public disclosure of records of discipline and complaints against a school district employee) stated that evaluating whether a complaint was well-founded required courts to examine the documents presented to determine “whether they reveal sufficient indicia of reliability to support a reasonable conclusion that the complaint was well founded.” If the complaint is thereby determined to be poorly found and insubstantial, it must weigh against public disclosure. Here, the Fourth District concluded the disposition letters provided “a sufficient basis upon which to reasonably deduce the complaints against Doe [we]re not substantial.” The Court observed that none of the complaints involved sexual, violent, or other egregious misconduct, but were limited to Doe publicly yelling and belittling the student-athletes and holding practice at their home; the Court found such conduct “objectively reasonable” and indicative of “what most dedicated coaches do.” The Court also noted that CVUSD handled the Doe investigation internally, and so determined that the complaints were not egregious enough to warrant outside-party investigation. CVUSD did not suspend or dismiss Doe, nor was Doe a high-profile public official. Instead, Doe was a teacher who resigned from coaching the team. The Court therefore found that Doe’s privacy interest in the disposition letters outweighed the public’s minimal interest in the matter. The Court concluded that under Section 6254 (c), the disposition letters therefore were exempt from disclosure. Accordingly, the Fourth District reversed the judgment and remanded to the trial court with instructions to enter a new order granting ACT’s petition.


  1. For purposes of the County Employees Retirement Law of 1937, a public employee who submitted an application for retirement is not officially retired until approval of the Board; thus, forfeiture provision applied.

Wilmot v. Contra Costa County Employees’ Retirement Assn., 29 Cal. App. 5th 846 (1st Dist. 2018)

Facts: Jon Wilmot started working for the Contra Costa County Fire Protection District (the “District”) in 1985 and had become a captain by 2012. During this time, he was a member of the county’s retirement program, which was developed by the county in accordance with the County Employees Retirement Law of 1937[13] (“CERL”). In December 2012, Wilmot submitted his application for retirement to the county’s retirement authority, the Board of Retirement for Contra Costa County Employees’ Retirement Association (“CCERA”). In April 2013, CCERA formally approved Wilmot’s retirement application, setting the date of his actual retirement as on the day he submitted the application in December 2012. Also in April 2013, CCERA also sent Wilmot monthly pension checks starting from December 2012.

Between the time Wilmot submitted his retirement application and the CCERA’s formal approval, two other events occurred. First, on January 1, 2013, the California Public Employees’ Pension Reform Act of 2013[14] (“PEPRA”) took effect. PEPRA’s section 7522.72 (b)(1) mandates the complete or partial forfeiture of pension benefits and rights if a public employee is convicted of “any felony under state or federal law for conduct arising out of or in the performance of his or her official duties.” Second, in February 2013, four felony charges were filed against Wilmot for stealing property and equipment from the District for over a decade.

Ultimately, Wilmot pled no contest in December 2015 to felony embezzlement over the twelve-year period ending in December 2012. Following Wilmot’s conviction, CCERA reduced the Wilmot’s monthly checks in accordance with Section 7522.72 from $8,758.61 to $2,858.56 effective September 1, 2016.

In October 2016, Wilmot petitioned for a writ of mandate. He argued, among other things, that he had submitted his retirement application in December 2012 and was therefore retired when PEPRA became effective in January 2013 – thus, Section 7522.72’s forfeiture provision did not apply to him because he was no longer a “public employee.” The trial court denied Wilmot’s petition, holding that Wilmot became a retiree when CCERA approved his retirement in April 2013, not when he submitted his retirement application.

Held: On appeal, Wilmot reasserted that he was retired after December 2012 and no longer an active working public employee; he was therefore beyond the reach of Section 7522.72. However, the California First District Court of Appeal affirmed, holding that, under CERL, a county employee is not officially retired until the county’s retirement authority approves the employee’s retirement application.

The Court explained that Section 7522.72 applies to a public employee first employed by a public employer before January 1, 2013. Wilmot started working for the District as a firefighter in 1985. Endorsing the trial court’s analysis, the Court explained that “[f]inishing the last day of work does not automatically make a public employee a ‘retired’ former employee. Submitting your application for pension benefits does not make you retired for purposes of CERL.” Despite the common understanding of what retirement means, the issue was not “how such a person characterizes herself, but how CERL does.” The Court noted that submitting retirement papers is just the start of the retirement process under CERL, which includes a review of the application, verification of the employee’s employment,[15] determining the employee’s final compensation, assessing compliance with other statutory requirements, and other steps. The Court also cited several provisions which “leav[e] no doubt that the decisive retirement event is [] approval” by a retirement board.[16]

The Court observed in a footnote that Wilmot submitted his retirement application in December 2012 one day after authorities apparently recovered property Wilmot took from the District, according to his criminal restitution documentation. The Court explained that “[n]either the language of section 7522.72 in particular, nor CERL in general, lends the slightest support to the idea that a corrupt public employee, knowing that law enforcement is closing in, has only to throw his retirement application in a mailbox to make accrued pension benefits untouchable.”

Here, while Wilmot submitted his retirement application in December 2012, CCERA formally approved Wilmot’s application for retirement in April 2013. Thus, when PEPRA came into effect on January 1, 2013, Wilmot was not retired, but still an unretired public employee subject to PEPRA and its forfeiture provision in Section 7522.72. The Court accordingly affirmed.

  1. Since court must project ‘impartial’ image to the public, rule preventing court employees from wearing clothing or accessories supporting union activity is permissible.

Superior Court v. Public Employment Relations Bd., 30 Cal. App. 5th 158 (5th Dist. 2018)

Facts: In December 2009, the Superior Court of Fresno County (“Court”) adopted certain personnel rules and regulations (“Personnel Rules;” individually, “personnel rule”) restricting Court employees’ clothing and activities. The provisions forbade employees from (1) wearing clothing or adornments with writings or images, including pins, lanyards and other accessories; (2) soliciting during working hours for any purpose without prior Court approval; (3) distributing literature (a) during working time and (b) during nonworking time in working areas; and (4) displaying writings or images not published by Court in work areas visible to the public.

The Court employees’ union, Service Employees International Union, Local 521 (“Union”) filed an administrative complaint with the Public Employment Relations Board (PERB) in March 2010. PERB is a quasi-judicial agency of the State of California charged with administering the provisions of the Trial Court Employment Protection and Governance Act (“Trial Court Act”) (Government Code section 71600 et seq.). PERB’s duties in this regard are described in Section 71639.1. The Union’s complaint alleged Court violated the Trial Court Act by implementing the Personnel Rules and alleged implementing the rules was an unfair practice.

In February 2017, PERB issued its decision. PERB determined that several aspects of the rules were improper as related to Union members and thus constituted unfair practices. PERB concluded rules prohibiting Court employees from wearing certain clothing anywhere in the courthouse and from displaying images that were not published by Court in work areas visible to the public overly broad and interfered with rights protected by the Trial Court Act. PERB also found the restriction on soliciting during work hours and the ban on distributing literature in working areas were ambiguous and overly broad. Relatedly, PERB considered and upheld its authority to remedy these violations and ordered the Court to rescind the rules.

Section 71639.4(a) authorizes those aggrieved by a final decision of PERB to obtain judicial review of that decision by filing a “petition for a writ of extraordinary relief” with the Court of Appeal. In March 2017, Court filed a petition for a writ of extraordinary relief with the California Fifth District Court of Appeal challenging PERB’s decision.

Held: The California Fifth District Court of Appeal concluded that the Personnel Rules did not violate the Trial Court Act, except for the rule prohibiting employees from distributing literature in “working areas,” which the Fifth District to be too ambiguous a term.

The Fifth District first explained that courts usually defer to PERB’s construction “unless it is clearly erroneous.” Addressing the personnel rule that prohibited Court employees from “wearing clothing or adornments with writings or images, including pins, lanyards and other accessories,” the Fifth District focused on how this personnel rule would affect the wearing of union regalia, since the personnel rule was specifically challenged under the allegation that it improperly infringed upon employees’ rights to wear union regalia at the workplace. Under East Whittier School Dist. (2004) PERB Dec. No. 1727, while employees have the right to wear union buttons and other regalia in the workplace, an exception can be made where an employer shows that special circumstances justify a prohibition of union buttons and regalia. The special circumstances exception includes where the employer has “a need ‘to project a certain type of image to the public.’” (Pay’N Save Corp. v. N.L.R.B. (9th Cir. 1981) 641 F.2d 697, 700 quoting N.L.R.B. v. Harrah’s Club (9th Cir. 1964) 337 F.2d 177, 180.)

The Fifth District explained the importance of having a judiciary that was not only impartial in fact, but also in appearance, as the “‘legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship.’ (Mistretta v. United States (1989) 488 U.S. 361, 407[].)” The United States Supreme Court in Cox v. Louisiana[17] discussed how public actions (in this case, picketing and demonstrating) around a courthouse can affect public perception, and that laws “may also properly protect the judicial process from being misjudged in the minds of the public.” The Fifth District found that public actions taken by Court employees here fell within an “equivalent ambit” as the public actions around the courthouse in Cox; both dealt “with the possibility the public may view those actions as affecting the process.”

The Fifth District explained that Court had a substantial interest in regulating its workforce to ensure that the judicial process appear impartial to all appearing before it. The Fifth District observed that in the service of maintaining the appearance of impartiality, the law recognizes that “even many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees.” (Waters v. Churchill (1994) 511 U.S. 661, 672.) Here, that applied to Court restrictions on employee attire in the personnel rule. The Fifth District held that Court’s substantial interest in appearing impartial constituted special circumstances justifying restrictions on clothing and adornments worn by court employees as described in the personnel rule.

The Fifth District also concluded, contrary to PERB’s findings, that the bans on soliciting during working hours and displaying images in areas visible to the public were not ambiguous and thus were properly adopted. The Fifth District’s independent review of the personnel rule’s context and how the Supreme Court used terms like “working hours” in Republic Aviation Corp. v. Board[18] supported a single non-ambiguous interpretation. However, after a review, the Fifth District Court of Appeal agreed with PERB that the regulations prohibiting the distribution of literature in working areas was ambiguous as to the meaning of “working areas.” In line with this conclusion, the Fifth District also agreed with PERB that separation of powers concerns did not prohibit PERB from imposing a remedy with respect to that regulation because the invalidation of the rule would not defeat or materially impair a constitutional function of the superior court.

Accordingly, the Fifth District granted the writ of extraordinary relief, affirming PERB’s decision invalidating the rule prohibiting the distribution of literature, but otherwise set aside PERB’s remaining conclusions.


When a forged check contains a stated value, that amount is its value for the purpose of determining whether the crime is a misdemeanor under Pen. Code section 473 (b).

People v. Franco, 6 Cal. 5th 433 (2018)

Facts: In July 2012, Ruben Phillip Franco was found in possession of a recently stolen check showing the owner’s forged signature and made out in the amount of $1,500. The name of the payee was blank. In January 2013, Franco pled guilty to forgery under Penal Code section 475(a). The court sentenced him to state prison but suspended the sentence and placed him on probation. In November 2014, the court learned that Franco had violated probation. At the hearing, the court rejected Franco’s request for the court to resentence him as a misdemeanant under the then-recently enacted Proposition 47. Proposition 47 amended Penal Code section 473(b) to generally make specified types of forgery misdemeanors if the “value” of the forged instrument does not exceed $950. (Penal Code section 473 (b).) Franco argued that the check’s value was less than $950. The court denied the request and imposed the previously suspended prison sentence. Franco appealed.

On appeal, Franco argued that the value of the check corresponded “not to the stated amount on the face of the forged instrument but to the intrinsic value of the instrument itself.” The Court of Appeal disagreed, concluding that the value of a forged instrument under Section 473(b), is its face value. The Court affirmed the lower court’s judgment because the check’s face value of $1,500 exceeded $950. The Supreme Court of California granted Franco’s petition for review to determine the value of a forged check under Section 473(b).

Held: The California Supreme Court held that when the forged check contains a stated value, that amount is the check’s value for Proposition 47 valuation purposes. The Court looked at three valuation methods. One method proposed by the defendants here in the Court of Appeal and in People v. Lowery[19] argued that the value of a forged check was only the intrinsic value of the paper itself. A second method, held by the Court of Appeal here, declared that for forgery, the value is the amount written on the check. A third approach was taken by the Court of Appeal in Lowery, which held that the value of the forged check was the amount the defendant could obtain for the check, not the amount for which it was written.

Here, the Supreme Court chose the second method, that the value of the forged check in this situation was the amount written on the check. The Court explained that because forgery requires the intent to defraud, and the stated value of the forged check indicates the severity of the intended fraud, the stated value amount is the “value” for Proposition 47 reclassification purposes. The Court noted that if, as Lowery argued, the value of a forged check is never more than the paper on which it is written, Section 473(b)’s language defining the $950 limit would be meaningless. The Court also determined the electorate was referring to stated or face value when, in Proposition 47, it reclassified only a subset of the forgery crimes based on their “value.” The Court found that Franco was not entitled to be sentenced as a misdemeanant because the value of the check was $1,500, exceeding the $950 threshold. Accordingly, the California Supreme Court affirmed, and disapproved Lowery to the extent it was inconsistent with the conclusion here.


  1. Substantial evidence supported jury’s finding that physician acted with a subjective appreciation of the risks involved when she prescribed patients with high doses of controlled substances; thus, murder convictions affirmed.

People v. Tseng, 30 Cal. App. 5th 117 (2nd Dist. 2018)

Facts: Hsiu Ying Lisa Tseng was a licensed physician who worked as an internist and osteopath at a clinic in Rowland Heights, California beginning in 2007. Within a year, the patient base and clinic had significantly changed. The patients changed from local Hispanic and Asian customers paying through their insurance to predominantly white males in their 20s and 30s coming from outside of Los Angeles County seeking pain and anxiety management medications. By 2010, the clinic had developed a reputation as a place where patients could easily obtain prescriptions for controlled substances, including opioids, sedatives, muscle relaxants, and drugs used to treat drug addiction. Clinic fees had doubled, and nearly all patients paid in cash. The clinic’s income increased from $600 a day in cash to $2,000 to $3,000 per day. Wait times had increased from 15 to 30 minutes in 2007 to about six hours with 20-30 patients in the waiting room or outside the clinic at any one time. In the waiting room, some appeared to be under the influence, and one patient overdosed there.

Tseng spent 15 minutes or less with new patients, and 5 minutes with return visitors. Often Tseng would not obtain adequate prior medical history or medical records from patients before prescribing medications. She did not do drug testing or check a state database which would have shown if other doctors had prescribed any controlled substances. Tseng would sometimes see two or three unrelated patients in the same examination room at the same time. Beginning in 2008, pharmacists began refusing to fill prescriptions Tseng wrote because of “red flags” raised by the combination of patient profiles, types of prescribed substances and quantities prescribed. Tseng adjusted by writing prescriptions instead to “mom and pop” pharmacies.

Beginning in 2008, investigators began contacting Dr. Tseng to discuss the deaths of several of her patients due to suspected drug overdoses soon after she wrote those patients prescriptions. Tseng put “alerts” in some of these patients’ records to note they had died from overdoes, and she altered patient records. In 2010 and 2012, the Drug Enforcement Agency (DEA), the California Department of Justice, and the Medical Board of California each investigated Tseng for diversion of drugs, executing search warrants and seizing computer, digital file copies, and patient records. Even after she had learned about patient deaths, Tseng continued her prescribing habits and office practices until July 2012 when she was arrested.

At the trial, the prosecution presented evidence that from September 2007 to December 2009, nine of Tseng’s patients—ranging from ages 21 to 34 years old —died shortly after filling the prescriptions Tseng wrote them for controlled substances. A jury convicted Tseng of three counts of second-degree murder, 19 counts of unlawfully prescribing controlled substances, and one count of obtaining a controlled substance by fraud. Tseng appealed.

Held: The Second District Court of Appeal of California held that substantial evidence supported the jury’s findings of implied malice and of causation for the second-degree murder convictions. The Court explained that implied malice exists when an intentional act naturally dangerous to human life is committed “by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”[20] “Implied malice is determined by examining the defendant’s subjective mental state to see if … she actually appreciated the risk of … her actions.”[21] “[T]he state of mind of a person who acts with conscious disregard for life is, ‘I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed.’”[22]

The Court found the evidentiary record revealed overwhelming evidence that Tseng’s treatment of her patients, including those at issue for the second degree murder convictions, was well below the standard of care in the practice of medicine and prescribing opioid medications. Though a departure from the medical standard of care alone would not suffice to support an implied malice finding, there was substantial evidence that Tseng subjectively appreciated the risk to her patients of her opioid prescription practices, which supported the jury’s finding of implied malice.

The Second District also found substantial evidence supported the jury’s finding that Tseng caused the deaths of two patients described in two of the second degree murder counts. The Court found the jury could have reasonably inferred from coroner conclusions and other evidence that the presence of methadone in “pretty small” amounts in one victim’s system and the presence of non-lethal amounts of alcohol in the other victim’s system were not independent intervening causes of their deaths, as Tseng had argued. The Court thus concluded substantial evidence supported the jury’s findings and accordingly affirmed. 

  1. Bureau of Prisons Prohibited Acts Code 203 does not violate a prisoner’s First Amendment rights because it is a sufficiently ‘close fit’ with legitimate government interest in preventing criminal conduct by inmates.

Lane v. Swain, 2018 U.S. App. LEXIS 35855 (9th Cir. Dec. 20, 2018)

Facts: In February 2002, Mark Alan Lane was sentenced to 360 months in prison for drug and money laundering convictions. From 2012 to 2013, Lane was accused by the Bureau of Prisons (“BOP”) of sending three different threatening letters from prison and was disciplined under BOP Prohibited Acts Code 203, which prohibits “[t]hreatening another with bodily harm or any other offense.” Lane was sanctioned with the revocation of good time credits at the time of each threatening letter. Lane filed three 28 U.S.C. 2241 habeas corpus petitions challenging the revocation. The court denied his petitions. Lane appealed, arguing that the term “another” and the phrase “any other offense” were so broad and vague as to violate his First Amendment rights.

Held: The Ninth Circuit Court of Appeals held that when read reasonably in the context of the prison setting, and limiting the phrase “any other offense” to criminal offenses or violations of BOP rules, Code 203 was sufficiently narrow and clear to protect inmates’ First Amendment rights. The Court explained that the United States Supreme Court in Procunier v. Martinez[23] held that a regulation interfering with outgoing prisoner mail is only justified if the regulation furthers an important or substantial interest unrelated to the suppression of expression protected by the First Amendment. Procunier identified three relevant governmental interests: “the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.” The regulation must also provide “a close fit between the challenged regulation and the interest it purported to serve.”

Here, Lane did not contest the District Court’s conclusion that Code 203 addressed both prison security and prisoner rehabilitation but contended Code 203 was overly broad. Lane said Code 203 did not narrowly define the term “another.” Lane contended that an inmate could be disciplined for threatening, for example, a fictional character. However, the Ninth Circuit found such an interpretation “would defy common sense” because there was no sign the BOP ever took such a broad view of Code 203. The term “another” was commonly understood, the Court explained, to be another living person, and was not impermissibly broad. Nor was the phrase “any other offense” without limitation; Code 203’s use of this phrase was reasonably construed as threating either a criminal violation or an offense punishable under BOP regulations.

Lane also argued that “any other offense” was without limitation, but the Court held and Procunier supported that the regulation was reasonably construed as threatening either a criminal violation or an offense punishable under BOP regulations. The Court further found that Procunier supported this interpretation. The Court observed that Code 203 addressed legitimate governmental interests, since allowing inmates to threaten a warden, prison guard, or any other person with bodily harm or other criminal conduct was clearly unacceptable. Considering Code 203’s limited language, understood in the context of federal prisons, the Court found Code 203 passed Procunier’s two-pronged test. Accordingly, the Court affirmed.

  1. Bureau of Prisons statute prohibiting the mailing of threatening letters while imprisoned is not unconstitutionally vague and is sufficiently narrow to encompass untruthful threats.

Lane v. Salazar, 2018 U.S. App. LEXIS 35861 (9th Cir. Dec. 20, 2018)

Facts: Mark Alan Lane was sentenced to 360 months in prison after drug and money laundering convictions in February 2002. In 2008, Lane wrote a letter as part of an appeal process that seemed to threaten “a Guards Life.” As a result of this letter, Lane received an incident report for violating BOP (“Bureau of Prisons”) Prohibited Acts Code 203. Code 203 prohibits inmates from “[t]hreatening another with bodily harm or any other offense.” 28 C.F.R. section 541.3. Lane protested that he was not threatening anyone in the letter. Lane was sanctioned at a December 2008 disciplinary hearing for violating Code 203. The pattern repeated in 2009 and in 2010, with Lane making similar statements in outgoing letters threatening violence against persons, asserting the letters were not intended to be threatening, and being sanctioned and punished under Code 203.

After exhausting his administrative remedies with respect to each of the three disciplinary proceedings, Lane filed pro se habeas corpus petitions pursuant to 28 U.S.C. section 2241 in a United States District Court. The District Court denied the petitions, finding that “some evidence” supported the BOP’s decisions. On appeal, the Ninth Circuit remanded the case to the trial court. The trial court again denied Lane’s petitions. Lane made a consolidated appeal contending that Code 203, construed to apply to non-true threats, was unlawfully broad and vague.

Held: Lane argued on appeal that Code 203 did not satisfy a two-part test set forth by the Supreme Court of the United States in Procunier v. Martinez.[24] The Ninth Circuit Court of Appeals explained that Procunier requires that where a regulation restricts prisoners from exercising their First Amendment right to send outgoing mail to non-prisoners, that regulation must (1) “further an important or substantial governmental interest unrelated to the suppression of expression” and (2) “be no greater than is necessary” to protect that interest. The Supreme Court had identified “the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners” as relevant government interests. The Ninth Circuit here agreed with the District Court’s conclusion that Code 203 enhanced security and order within the prison, observing that courts are encouraged to defer to corrections officials on such judgments due to their expertise and experience in such matters. The Court also found that prohibiting bodily harm served the legitimate government interest in rehabilitation.

For the second part of the Procunier test, the Court determined that the government had shown that Code 203 was necessary to curb threats in outgoing mail, and that the provision constituted a “close fit” with its legitimate government interest. The Court noted that inmate complaints and similar expressions of dissatisfaction were still protected from punishment even with Procunier, but threats of bodily harm were communications of a “very different, more troubling” nature; Code 203 still prohibited these communications. The Court thus concluded that BOP’s prohibition on threats of bodily harm addressed legitimate penological concerns in a manner that was sufficiently narrow to satisfy constitutional concerns.

Lane also argued that Code 203 was void for vagueness under United States v. Makowski.[25] The Court disagreed, finding the regulation did not prohibit threats generally, but rather was limited to threats of bodily harm or other offense violating the criminal code or BOP. The Court also found the way BOP used the term threat generally comported with a common-sense understanding of a threat, negating the notion of the provision being too vague. The Court also found that the evidence against Lane was sufficient to show he violated Code 203, because from the prison’s perspective, Lane’s letter threats “reasonably constituted a threat of bodily harm.” The Ninth Circuit accordingly affirmed.

[1]  People v. Douglas, 240 Cal.App.4th 855, 860 (1st Dist. 2015).

[2]  Terry v. Ohio, 392 U.S. 1, 30–31 (1968).

[3] In re Carlos M., 220 Cal.App.3d 372, 381–382 (4th Dist. 1990).

[4] In re Tony C., 21 Cal.3d 888, 893 (1978).

[5] Plaintiffs also appealed the District Court’s denial of their attempt to certify a class. The Ninth Circuit later affirmed the District Court’s denial of class certification.

[6] 859 F.3d 1194, 1196-97 (9th Cir. 2017).

[7] United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001).

[8] Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005).

[9] 143 Cal.App.4th 742 (3rd Dist. 2006).

[10] 127 Cal.App.4th 805, 818 (4th Dist. 2005).

[11] 202 Cal.App.4th 1250 (2nd Dist. 2012).

[12] 118 Cal.App.4th 1041 (5th Dist. 2004).

[13] Gov. Code, section 31450 et seq.

[14] Gov. Code, section 7522 et seq.

[15] Flethez v. San Bernardino County Employees Retirement Assn., 2 Cal.5th 630, 636 (2017).

[16] See Sections 31497.3 (a) [“Retirement of a member … who has met the requirements for age and service shall be made by the board, at which time the member … becomes a retired member,” (italics added)], 31499.4 (a) [same], 31511.4 (a) [same], 31486.4.(a) [“Retirement of a member or former member who has met the requirements for age and service shall be made by the board, at which time the member or former member becomes a retired member” (italics added)], 31491 (a) [same], 31499.14 (a) [same].

[17] 379 U.S. 559 (1965).

[18] 324 U.S. 793 (1945).

[19] 8 Cal.App.5th 533 (6th Dist. 2017).

[20] People v. Lasko, 23 Cal.4th 101, 107 (2000).

[21] People v. Superior Court (Costa) 183 Cal.App.4th 690, 697 (2nd Dist. 2010).

[22] People v. Olivas, 172 Cal.App.3d 984, 988 (1st Dist. 1985).

[23] 416 U.S. 396 (1974).

[24] 416 U.S. 396, 413 (1974).

[25] 120 F.3d 1078, 1080-81 (9th Cir. 1997).