Courtesy of James R. Touchstone, Esq.


  1. Nervous and evasive behavior is a pertinent factor in determining whether suspicion is reasonable.

People v. Flores, 2021 Cal. App. LEXIS 130 (2nd Dist. Feb. 16, 2021)

Facts: Two officers were patrolling at 10:00 p.m. at night, on a cul-de-sac known for its illegal drug and gang activity. Officer Michael Marino testified that Marlon Flores was standing in the street behind a car that was parked on the red curb at the dead end. “After we initially saw him, he went over to the passenger side rear fender area, appeared to be ducking down as if trying to hide or conceal something from us.” Police body-worn camera footage showed the following according to the court opinion here: “at 10:00 p.m. at night, on a cul-de-sac, police see a man in the street who, when he sees them, goes around and ducks behind a car. The man looks up, ducks behind the car again, looks up again, and then ducks down again. When an officer approaches to see what is going on, the man remains crouched, with his hands out of sight and with his moving arms away from the approaching officer and his bright flashlight, which casts an obvious beam on the man. The beam contrasts sharply with the dark street and sidewalk and casts the man’s shadow in front of him, in the man’s line of sight. The approaching officer’s radio is noisy. Despite the approaching light and noise, the man continues to face away from it, to move his arms as if he is toying with his feet, and to keep his hands out of the officer’s view. He stays ducked down for about 20 seconds before beginning to stand.”

The police believed Flores was pretending to tie his shoe, and suspected he was “there loitering for the use or sales of narcotics.” They ordered him to stand and put his hands on his head. They handcuffed Flores, and one officer checked Flores for weapons. This officer patted an electronic car key on Flores that activated the lights on the parked car. The other officer looked through the car window and saw a methamphetamine bong. The officer suspected the car might contain other contraband. The police asked Flores if this was his car; Flores said yes. They asked for identification. Flores gave his consent for the police to get his wallet inside the car in the driver’s side door. In the wallet police found a bindle of what looked like methamphetamine. Police then searched Flores’s car and found a loaded and unlicensed gun inside a backpack on the front passenger seat.

The trial court judge denied Flores’s motion to suppress the gun evidence. Flores then pleaded no contest to carrying a loaded, unregistered handgun. The trial court placed Flores on formal probation for three years with conditions including a drug program. Flores appealed.

Held: The California Second District Court of Appeal noted that the Fourth Amendment permits police to initiate a brief investigative stop when they have a particularized and objective basis for suspecting the person of criminal activity. A mere hunch is too little, and refusal to cooperate with police, without more, does not create an objective justification for an investigative detention. (Florida v. Bostick (1991) 501 U.S. 429, 437.) However, under Terry v. Ohio (1968) 392 U.S. 1, police patrolling a high crime area reasonably become suspicious when a person sees them and runs. This reasonable suspicion justifies detaining the runner for investigation: a Terry stop. (Illinois v. Wardlow (2000) 528 U.S. 119, 124-125.) Significant here, nervous and evasive behavior is a pertinent factor in determining whether suspicion is reasonable. (Id. at p. 124.)

Flores argued that the detention was illegal, and that the Terry stop began when the police shined a flashlight on him, citing People v. Kidd (4th Dist. 2019) 36 Cal.App.5th 12, 21-22. The Court explained, however, that “[w]ithout more, a law enforcement officer shining a spotlight on a person does not constitute a detention” (Id. at p. 21; italics added). Instead, the Second District stated that the Terry stop began when the officer told Flores to stand and put his hands behind his head, and that, at that point, Flores’s suspicious actions meant a Terry stop was proper. The Court of Appeal recalled that the trial court judge expressly found: (1) Flores saw police and tried to avoid contact with them by ducking down behind a parked car; (2) During Flores’s ducking and crouching, Flores was “toying with his feet.” Flores did not freeze or remain still. Rather than remain motionless, Flores continued doing something with his hands. He persisted despite the approaching light and radio noise, which obviously were from an officer from the police car Flores had seen before ducking. Flores kept moving his hands. Flores kept his hands out of the sight of the approaching officer with the camera; (3) As police that night approached in an obvious way “with a huge light on him,” Flores persisted in his odd crouch position for “far too long a period of time.” The Second District Court of Appeal concluded that the combination of these facts did not establish Flores was engaged in illegal drug activity, but the trial court was right that together the facts justified this Terry stop.[1] The Second District accordingly affirmed.

  1. District Court conflated California negligence standard regarding pre-shooting conduct with Fourth Amendment standard and did not consider that jury could find officer’s pre-shooting conduct unreasonable under California law.

Tabares v. City of Huntington Beach, 2021 U.S. App. LEXIS 4470 (9th Cir. Feb. 17, 2021)

Facts: In September 2017, City of Huntington Beach police officer Eric Esparza noticed Dillan Tabares on a sidewalk wearing a sweater on a warm day, walking abnormally, making fidgeting, flinching movements with his hands, and looking over in Officer Esparza’s direction several times. Jack Roten, an eyewitness and former police officer, believed Tabares may have had mental health issues because he was talking to himself and gesturing with his hands. Officer Esparza observed Tabares at the same time Roten observed these behaviors. Officer Esparza parked at a 7-Eleven towards where Tabares was heading and exited his vehicle. He asked Tabares to stop walking to talk. Tabares responded “no” and told Officer Esparza to leave him alone while continuing to walk away. Officer Esparza decided to detain Tabares and instructed him to stop walking away multiple times. Witnesses described Tabares’s facial appearance as “crazed” or with “glazed over eyes” or thought he might be under the influence of alcohol or drugs.

Tabares eventually turned towards Officer Esparza while speaking loudly and aggressively. He walked towards Officer Esparza in a confrontational manner with his fists clenched. Officer Esparza backed up on the sidewalk while telling Tabares to stop, then tasered him with no visible effect. Tabares then approached Officer Esparza and punched him in the face. The two fought, ending up on the ground with Officer Esparza on top of Tabares. Tabares grabbed at the officer’s belt while Officer Esparza repeated “let go of the gun.” Officer Esparza felt Tabares take something from Officer Esparza’s belt, which turned out to be his police flashlight. Officer Esparza stood, drew his gun, and separated from Tabares, as his body camera started recording. Officer Esparza retreated about 15 feet away and saw Tabares holding what Officer Esparza should have known was his flashlight. Three seconds after separating to the 15 feet distance, Officer Esparza shot Tabares six times, shouted “get down” twice, then shot him a seventh time after he stumbled from the gunshot, killing Tabares.

Tabares’s mother (“Plaintiff”) filed a complaint in federal District Court alleging 42 U.S.C. section 1983 claims, including for excessive force under the Fourth Amendment, and California claims for, among other things, negligence. The District Court granted summary judgment on all claims for Defendants Officer Esparza and the City of Huntington Beach. Plaintiff appealed only her negligence claim.

Held: The Ninth Circuit Court of Appeals first noted that California negligence law regarding the use of deadly force overall “is broader than federal Fourth Amendment law.” Hayes v. Cnty. of San Diego, 305 P.3d 252, 263 (Cal. 2013). Under California law, officers are liable “if the tactical conduct and decisions leading up to the use of deadly force show, as part of the totality of circumstances, that the use of deadly force was unreasonable.” (Id. at 254; italics added.) Under state law, an officer’s pre-shooting decisions can render his behavior unreasonable under the totality of the circumstances, even if his use of deadly force at the moment of the shooting might be reasonable in isolation. Federal law, however, generally focuses on the tactical conduct at the time of shooting, though a prior constitutional violation may proximately cause a later excessive use of force.

The Court held that the District Court erroneously conflated the legal standards under the Fourth Amendment and California negligence law. Specifically, the District Court: (1) inaccurately concluded that Plaintiff did not point to any evidence probative of the fact that Tabares exhibited symptoms of mental illness that would have been apparent to Officer Esparza; (2) did not consider that a jury could find Officer Esparza’s pre-shooting conduct unreasonable under California law, given Tabares’s potential mental illness; and (3) misinterpreted the Ninth Circuit precedent set forth in Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002), in assessing the reasonableness of Officer Esparza’s conduct at the time of the shooting.

The Court held that Plaintiff presented sufficient evidence that Officer Esparza’s shooting of Tabares could be found negligent by a reasonable juror under the broader formulation of reasonableness in California law. Considering all evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that Officer Esparza should have suspected Tabares had mental health issues and that he unreasonably failed to follow police protocol when dealing with potentially mentally ill persons before using force. Finally, Officer Esparza’s decision to shoot Tabares, without warning, six times–and then a seventh–could be found by a jury to be unreasonable. Accordingly, the Court reversed the District Court’s summary judgment for Defendants on Plaintiff’s state law negligence claim, and remanded.

  1. Jury’s negligence verdict was not foreclosed by its rejection of plaintiff’s false arrest claim.

Collins v. Cnty. of San Diego, 2021 Cal. App. LEXIS 136 (4th Dist. Feb. 17, 2021)

Facts: 30-year-old David Collins had a cold in October 2016 and used the over-the-counter medications DayQuil and NyQuil into and throughout November as he remained ill. During this period, his apartment roommates and friends observed that Collins seemed sick, staying in his bedroom, and was not as social as he had been. Collins’s roommate Richard Huth returned from work one Friday evening during this period and got in the shower. Collins was home at the time. About the time of Huth’s arrival, Collins had called 911, reporting that there were two homeless people in his bed. The dispatch operator noted Collins was slurring his words and was difficult to understand.

San Diego County Sheriff’s Deputies, including David Sanchez and Matthew Chavez arrived at Collins’s house. Sanchez testified that he thought Collins’s speech was slurred and that he smelled of alcohol. Chavez testified that Huth told him that Collins had “been binge drinking all week, and he probably was just … seeing people that weren’t there, imagining people in the house.” Sanchez also recalled Huth mentioning that Collins had been binge drinking over the past week. Sanchez recalled that before leaving, Huth told Sanchez he would stay with Collins while he “slept it off.” Both deputies assumed that Collins was drunk, and left.

Hours later, Collins went into his room and got into bed. Huth, assuming Collins was asleep, then left the house with friends to go out downtown. Some minutes later, Collins wandered outside towards a convenience store. A passerby saw Collins fall into a planter and called 911. A fire engine with a three-person crew including a fire captain and a paramedic arrived, and the paramedic began assessing Collins.

Responding to a call from the dispatcher for medical assistance, Sanchez and Chavez arrived at the scene thereafter. Sanchez recalled that when he arrived at the scene, the paramedics were speaking with Collins. The fire captain testified that when Chavez and Sanchez arrived, they “instantaneously” arrested Collins and handcuffed him within two minutes of their arrival. The fire captain also testified that he did not think that the paramedic had the chance to take Collins’s vital signs. Sanchez testified at trial that he “realized that it was the same person from earlier in the evening. And then, you know, did my quick eval of him and then determined that he also was going to be arrested for public intoxication.” After the officers arrested Collins, Chavez changed the reason for the call in the department’s computer system from medical assistance to an arrest for public intoxication. They took Collins to jail.

At the jail over a period of hours, Collins fell twice more, hitting his head. He was taken to a hospital, where he was diagnosed with hyponatremia, a severely low sodium level, and a subarachnoid hemorrhage, or brain bleed, to his frontal lobe. Toxicology testing indicated that Collins did not have any drugs or alcohol in his system. Collins ultimately suffered severe and irreparable brain injury.

Collins sued Chavez, Sanchez, and the County of San Diego asserting, among other things, wrongful arrest and negligence causes of action. After a trial, the jury concluded that the deputies were negligent, and their negligence was a substantial factor in causing harm. The jury rejected Collins’s unlawful arrest claim, finding that the deputies had “a reasonable basis at the time of [Collins’s] arrest to believe he was under the influence of alcohol, drugs or a combination of both” and “had a reasonable basis … to believe [Collins] was in a condition that he was unable to care for his own safety or the safety of others.” On appeal from the subsequent judgment and the denial of its motion for judgment notwithstanding the verdict (JNOV), the County contended that the jury’s finding that the deputies had a reasonable basis to arrest Collins foreclosed his negligence claim against the deputies.

Held: The California Fourth District Court of Appeal explained that with regard to a negligence claim in the context of an arrest, the arrest itself is not actionably negligent so long as the officer had probable cause to make the arrest. (Salazar v. Upland Police Dep’t (4th Dist. 2004) 116 Cal.App.4th 934, 947.) A plaintiff may avoid this bar only if he pursues a viable negligence theory that is fundamentally distinct from his false arrest claim. Here, the jury found that there was a reasonable basis for Chavez and Sanchez to believe that Collins was intoxicated and also that Collins posed a danger to himself or others, and thus rejected Collins’s claim for false arrest. The County argued that the jury’s findings foreclosed Collins’s negligence claim against the deputies because that claim was also based on the lawfulness of the arrest.

The Fourth District disagreed with the County’s characterization that Collins’s negligence claim was based on the false arrest, explaining that the existence of probable cause was not a prerequisite to Collins’s negligence claim. The deputies could simultaneously have probable cause to arrest Collins, but also have negligently interfered with the paramedics, preventing Collins from receiving critical medical care. The Court stated that the evidence before the jury was sufficient to support this theory of liability. Specifically, the fire captain, one of three fire department personnel who arrived on the scene first, testified that when Chavez and Sanchez arrived, they “instantaneously” arrested Collins and “when they arrived on scene, the first thing that I saw was they cuffed him.” The fire captain also testified that he did not think that the paramedic had the chance to take Collins’s vital signs, and recalled that when the deputies handcuffed Collins, he overheard one of the deputies state to the paramedic “‘We’ll take it from here.’” In addition, the fire captain estimated just two minutes passed from the time the deputies arrived until the time Collins was handcuffed. The jury’s negligence verdict was thus not foreclosed by its rejection of Collins’s false arrest claim, and was also sufficiently supported by the evidence. Accordingly, the Fourth District Court of Appeal affirmed.


Injunctive relief against California’s prohibition on most indoor worship services during the COVID-19 pandemic was warranted because it violated First Amendment free exercise of religion.

  1. Bay United Pentecostal Church v. Newsom, 2021 U.S. LEXIS 758 (Feb. 5, 2021)

Facts: In part of its response to the COVID-19 pandemic crisis, California banned indoor worship at religious institutions. South Bay United Pentecostal Church filed an emergency application for injunctive relief, but the application was denied by the Ninth Circuit Court of Appeals. The application was presented to United States Supreme Court Justice Elena Kagan, and was referred by her to the Supreme Court. The State had a spreadsheet (part of the State’s “Blueprint”[2]) summarizing its pandemic rules. “Tier 1” of the spreadsheet reflected that California forbade any kind of indoor worship. Meanwhile, the State allowed most retail operations to proceed indoors with 25% occupancy, and other businesses to operate at 50% occupancy or more.

The Church argued that the State’s prohibitions violated the First Amendment by restricting the free exercise of religion, noting the lack of similarly stringent prohibitions on businesses. The State of California argued that religious worship was different because it involved religious exercises involving (1) large numbers of people mixing from different households; (2) in close physical proximity; (3) for extended periods; (4) with singing.[3]

Held: In a 6-3 decision with several different opinions, the emergency application was granted in part, enjoining the State’s enforcement of the Blueprint’s Tier 1 prohibition on indoor worship services against the applicants pending disposition of the petition for a writ of certiorari. The application was denied with respect to the percentage capacity limitations, and the State was not enjoined from imposing a 25% capacity limitation on indoor worship services in Tier 1.

Justice Gorsuch, joined by Justices Thomas and Alito, wrote a statement that observed initially that regulations like those at issue here violate the First Amendment unless the State could show they were the least restrictive means of achieving a compelling government interest, thus surviving strict scrutiny. Justice Gorsuch stated that California erred by suggesting the aforementioned four factors were always present in worship, or always absent from the other secular activities its regulations permitted. Nor had California sought to explain why it could not address its legitimate public safety concerns of reducing the risk of COVID-19 transmission with rules short of a total ban. Justice Gorsuch noted that some worshippers may go to pray in solitude, go to confession, or study in small groups rather than the large numbers California’s prohibition inherently assumed. Moreover, no such limitation in numbers was imposed on train stations or on long lines within businesses California allowed to remain open. The State did not explain why a less restrictive option of limiting the number of people was not acceptable for religious institutions as it was for many stores and businesses. Narrower options were likewise potentially viable for mitigating the close physical proximity factor within religious institutions, such as masks, social distancing requirements, plexiglass barriers, etc. Yet the State did not indicate consideration of such options.

Justice Gorsuch observed that California was concerned that worship brings people together for too much time, yet the State did not limit its citizens to “running in and out of other establishments; no one is barred from lingering in shopping malls, salons, or bus terminals.” Nor had California explained why more narrowly tailored options, like a reasonable limit on the length of indoor religious gatherings, would fail to meet its concerns. Thus, according to Justice Gorsuch, California singled out religion for worse treatment than many secular activities while simultaneously failing to explain why narrower options the State deemed sufficient in secular contexts did not satisfy its legitimate interests. Justices Gorsuch and Thomas would have granted the application in full.

Chief Justice Roberts concurred in the partial grant of relief, expressed that federal courts owe significant deference to politically accountable officials with the background, competence, and expertise to assess public health. Noting that California had concluded that singing indoors presented a heightened risk of virus transmission, Justice Roberts stated that he saw no basis for overturning the State’s determination as it reflected expertise or discretion – unlike the State’s implicit determination that no nonzero number of worshippers indoors was sufficiently safe.

Justice Kagan, joined by Justice Sotomayor and Justice Breyer, dissented. The dissent stated, “Justices of this Court are not scientists. Nor do we know much about public health policy.” Yet the majority had nonetheless opted to displace “the judgments of experts about how to respond to a raging pandemic.” The dissent maintained that permitting outdoor services in California’s mild climate did not equate to a ban, and worship services had indeed taken place. Moreover, many businesses were similarly restricted, such as attending a political meeting, or movie; thus, religious services were not disfavored from secular activities generally. The dissent worried that the Court’s conclusion threatened to worsen the pandemic by ignoring the State’s expert scientific findings.


Employee was not ‘retired’ for purposes of County Employees Retirement Law of 1937 when petitioner submitted his application for retirement benefits.

Wilmot v. Contra Costa Cnty. Employees’ Ret. Ass’n, 2021 Cal. App. LEXIS 101 (1st Dist. Feb. 5, 2021)

Facts: Jon Wilmot began working for the Contra Costa County Fire Protection District (the “District”) in 1985, and by 2012, had risen to the rank of captain. During this period, he was a member of the retirement program established by the County in accordance with the County Employees Retirement Law of 1937 (“CERL”),[4] which is administered by the Board of Retirement of the Contra Costa County Employees’ Retirement Association (collectively, “CCERA”). On December 13, 2012, he submitted his application for retirement to CCERA the day after his final day on the job.

On January 1, 2013, the California Public Employees’ Pension Reform Act of 2013 (“PEPRA”) took effect. PEPRA includes a provision that mandates the forfeiture of pension benefits/payments 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.” (Government Code section 7522.72, subd. (b)(l) (“Section 7522.72”).) Authorities learned that Wilmot had, for much of his tenure, been stealing property and equipment from the District. In February 2013, Wilmot was indicted for stealing County property. In April 2013, CCERA approved his retirement application, fixing Wilmot’s actual retirement on the day he submitted that application on December 13, 2012, and Wilmot began receiving monthly pension checks starting from December 2012. In December 2015, Wilmot pleaded guilty to embezzling county property over a 13-year period ending in December 2012. Thereafter, CCERA reduced Wilmot’s monthly check in accordance with Section 7522.22.

Wilmot filed a petition of writ in the fall of 2016. He argued, among other things, that the forfeiture provision of Section 7522.72 did not apply to him because, as of the section’s January 1, 2013 effective date, he was not a public employee subject to the statute; rather, he had become a retiree on December 13, 2012 when he had submitted his application for retirement. The trial court denied Wilmot’s petition.

Held: The California First District Court of Appeal noted that Wilmot asserted that after December 13, 2012, he was retired, no longer an active, working public employee, and therefore beyond the reach of Section 7522.72. Wilmot stated that no CERL provision states that retirement occurs upon board action. The First District explained, however, that finishing the last day of work does not automatically make a public employee a “retired” former employee, nor does applying for pension benefits make a public employee retired for purposes of CERL. The Court explained that the issue was not how such a person characterizes their own status, but how CERL does. Many post-application-submission steps yet remain prior to the person becoming a retiree for CERL purposes, such as the Board’s review of the application, verification of the employee’s history, compensation components must be computed, vacation or leave time may factor in, and many others which all take time. Moreover, several statutory provisions explicitly state that “[r]etirement of a member … shall be made by the board, at which time the member or former member becomes a retired member.” (Government Code sections 31491(a), 31497.3(a), 31499.4(a); italics added.)

The Court concluded that a public employee who has submitted application for retirement, and who is no longer actually working, is in a state of limbo until the application is approved by the retirement board. It is only with that approval that the employee can be considered “a retired member” for purposes of CERL. The First District determined here, on January 1, 2013, when the PEPRA and Section 7522.72 took effect, Wilmot’s application had been submitted but not yet approved by CCERA. Because Wilmot did not become officially retired until April 2013, he was thus subject to the new forfeiture provision.

Alternatively, the Court found that even if the provision had been applied to a retired employee, no impairment of contract or ex post facto violation (Cal. Const., art. I, section 9) would have resulted because curbing job-related misconduct is a reasonable purpose related to maintaining the pension system and the forfeiture is a remedial civil measure, not an ex post facto criminal penalty. Accordingly, the First District Court of Appeal affirmed.


  1. Showing any violation of Cal. Code Regs., tit. 17, Section 1919.1 does not rebut Evidence Code section 664’s presumption that chemical blood tests were properly conducted.

Gerwig v. Gordon, 2021 Cal. App. LEXIS 141 (4th Dist. Feb. 19, 2021)

Facts: William Lee Gerwig crashed into the back of another vehicle at an intersection, and was thrown from his motorcycle and landed on the asphalt. California Highway Patrol Officer Jacob Rebelo responded to the scene and spoke with Gerwig while he was receiving medical attention. Based on Gerwig’s lethargic responses, the smell of alcohol, and his inability to recall the collision details, Rebelo suspected Gerwig was intoxicated. Gerwig also admitted he had some wine prior to driving. Rebelo arrested Gerwig for violating Vehicle Code section 23152—driving under the influence of alcohol (“DUI”)—and watched while state-certified phlebotomist Francisco Moreno collected two vials of blood using a nonalcoholic swab to clean the site. Test results from Gerwig’s blood draw showed a blood-alcohol concentration (“BAC”) of .25 percent. Rebelo seized Gerwig’s license and gave him notice that the DMV would conduct a review and could suspend his driving privileges. Gerwig requested a hearing on the matter pursuant to Vehicle Code sections 13558 & 14100.

At the hearing, Gerwig’s counsel demonstrated that the company that sent Moreno to take Gerwig’s blood – Specimen Specialists of America, Inc. (“SSI”) – utilized certain procedures that were out of compliance with state regulations that govern blood test procedures. Specifically, Moreno was functionally unsupervised and the manual that SSI provided for phlebotomists had not been approved by a physician and surgeon. Blood samples must be collected in compliance with Vehicle Code section 23158 (Cal. Code Regs., tit. 17, Section 1219.1 (“title 17”)), which calls for phlebotomists to operate under procedures and policies approved by a physician and surgeon, and to be supervised by individuals with certain credentials who review the phlebotomist’s work on a monthly and annual basis. After eliciting testimony to demonstrate these procedural failings, counsel argued that the test results could not be relied on due to SSI’s regulatory violations. The hearing officer agreed there was a title 17[5] violation, but still relied on the lab report to conclude that Gerwig drove with a BAC at or above .08 percent. Since there was no evidence to suggest that Moreno was unqualified or that there was some particular problem with the blood test, she found no reason to doubt its accuracy.

Gerwig sought writ review, but the trial court denied relief despite agreeing that some aspects pertaining to title 17 were not in compliance. Gerwig appealed.

Held: The California Fourth District Court of Appeal stated that the question raised by Gerwig’s appeal was whether any violation of the regulations governing blood tests is enough to rebut the presumption of Evidence Code section 664. Section 664 “‘creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17 [and] recorded test results are presumptively valid [such that] the DMV is not required to present additional foundational evidence.’” (Manriquez v. Gourley (4th Dist. 2003) 105 Cal.App.4th 1227, 1232; Evidence Code section 664.)

The Court declared that to rebut the Evidence Code presumption, the licensee must present evidence of a title 17 violation that bears some reasonable relation to the reliability of the test results. The Court found that the type of title 17 violation highlighted by Gerwig “shows no more than a mere possibility that the integrity of the sample was not maintained. Such speculation is insufficient to support a reasonable inference that the integrity of the sample was, in fact, compromised.” (Baker v. Gourley, 81 Cal. App. 4th 1167, 1174 (4th Dist. 2000).) In accord with the general principle that the licensee’s attempt to rebut the Evidence Code presumption “‘cannot rest on speculation,’” the Court concluded that showing any violation of title 17 was not sufficient in and of itself. The licensee must present some evidence that the demonstrated violation gives rise to a reasonable inference that the test results are unreliable. It was not enough to show a violation of governing regulations that had only a tenuous connection to the accuracy of the results. Here, because Gerwig proved a regulatory violation with only an indirect and speculative relationship to the manner in which the blood test was conducted (and thus correspondingly to the reliability of the test results), the Fourth District affirmed the order denying the petition for writ of mandate.

  1. Defendant’s conviction for recording confidential communications was proper because prostitutes have an expectation of privacy in their communications during sexual encounters at a client’s residence.

People v. Lyon, 2021 Cal. App. LEXIS 158 (3rd Dist. Feb. 24, 2021)

Facts: In March 2011, Michael J. Lyon pleaded guilty to four counts of eavesdropping on or recording confidential communications. (Penal Code section 632(a).) These convictions were based on the secret videotaping of prostitutes at his residence. The trial court imposed but suspended execution of a two-year sentence and placed him on probation for a term of five years.

In October 2014, a search of many electronic devices seized from Lyon’s residence revealed that, in 2013 and 2014, Lyon had engaged in sexual relations with prostitutes at his residence and had secretly videotaped these encounters. The women were not aware that they were being recorded and never gave defendant permission to do so. The women learned about the recordings for the first time after the search. The recordings were played at trial; some of them captured both words and real time images while others only captured real time images.

In November 2015, the People filed an amended information in January 2018, charging Lyon with 12 counts of violating Section 632 and four misdemeanor counts of disorderly conduct. The Section 632 counts involved video recordings that captured both words and real time images while the disorderly conduct counts involved video recordings that only captured real time images. Lyon’s motions to dismiss the Section 632 charges were denied by the trial court. A jury later found Lyon guilty of six counts of eavesdropping on or recording confidential communications under Section 632(a) and two counts of disorderly conduct. The trial court sentenced Lyon to an aggregate term of six years four months in prison.

Lyon appealed, arguing in part that prostitutes, as a matter of law, have no reasonable expectation of privacy in their communications during sexual encounters at a client’s residence, and therefore the trial court erred in denying his motion to dismiss on those grounds.

Held: The California Third District Court of Appeal affirmed. The Court explained that Article I, section 1 of the California Constitution declares: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Cal. Const., art. I, section 1, italics added.)

Section 632 was enacted in 1967 as part of the California Invasion of Privacy Act (“Privacy Act”), and its enactment was an expression of the Legislature’s intent to strongly protect an individual’s privacy rights, even as scientific and technological advances new devices and methods for eavesdropping upon private communications. Section 632(a) imposes liability on “[every] person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication ….” A “video recorder … is a recording device for purposes of the privacy act.” (People v. Gibbons (4th Dist. 1989) 215 Cal.App.3d 1204, 1208.) Section 632(c) defines “confidential communication” to include “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a […] circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” The term “confidential communication” has been interpreted to include communication by conduct in addition to oral or written dialogue. (See People v. Drennan (3rd Dist. 2000) 84 Cal.App.4th 1349, 1353; Gibbons, supra, 215 Cal.App.3d at p. 1209 [“confidential communication” under Section 632 encompasses communication by conduct, including sexual relations].)

Here, the Third District rejected Lyon’s contention that prostitutes have no objectively reasonable expectation of privacy in their communications during sexual encounters at a client’s residence, regardless of the particular circumstances of the interaction. The Court explained that the plain text of Section 632(a) did not support such a result and Lyon had not cited any otherwise persuasive authority. Moreover, such a position would contravene the Privacy Act’s goal to strongly protect individual privacy rights. The Court stated that a person’s participation in sexual activities at a private residence in exchange for money, without more, does not necessarily cause them to expect that their words and actions will be recorded without their consent. Stated differently, prostitution activities in this context do not, as a matter of law, render objectively unreasonable a person’s expectation that they will not be secretly recorded in a video that can be disseminated to others. The Court declared that there is nothing about prostitution activities at a private residence that strips a prostitute of their right to control the firsthand dissemination of their words and images.

  1. Senate Bill No. 1391 is a permissible amendment to Proposition 57 because it furthers Proposition 57’s fundamental purposes.

O.G. v. Superior Court, 2021 Cal. LEXIS 1411 (Feb. 25, 2021)

Facts: Proposition 57, passed in the November 2016 general election, requires prosecutors to commence all cases involving a minor in juvenile court. “Proposition 57 is an ‘ameliorative change[] to the criminal law’” that “the legislative body intended ‘to extend as broadly as possible.’” (People v. Superior Court (Lara) (2018) 4 Cal. 5th 299, 309.) Proposition 57 expressly allowed for amendments that “are consistent with and further the intent of this act … .”[6] As originally enacted, Proposition 57 allowed prosecutors to move to transfer some minors as young as 14 from juvenile court to adult criminal court. Senate Bill No. 1391, enacted in 2018, amended Proposition 57 to prohibit minors under the age of 16 from being transferred to adult criminal court.[7]

Two days after the passage of Senate Bill 1391, the Ventura County District Attorney’s Office filed a petition in juvenile court alleging that when minor O.G. was 15 years old, he committed two counts of murder and one count of second-degree robbery, with gang and firearm enhancements. The District Attorney’s Office contemporaneously filed a motion to transfer O.G. to criminal court. The District Attorney’s Office argued that Senate Bill 1391 is an unconstitutional amendment to Proposition 57 and the juvenile court therefore retained its authority to conduct a hearing to determine O.G.’s suitability for transfer to criminal court. The juvenile court found that Senate Bill 1391 is unconstitutional because it prohibits what Proposition 57 “expressly permit[s]: adult court handling of 14 and 15-year-old minors accused of murder.”

O.G. filed a petition for writ of mandate challenging the juvenile court’s ruling. The Second District Court of Appeal denied writ relief and held that Senate Bill 1391 is unconstitutional because the language of Proposition 57 permits adult prosecution for 14- and 15-year-olds. In so holding, the Second District disagreed with what was at the time five and, prior to the ruling here would become seven, other Court of Appeal panels to have addressed the issue.[8] The Supreme Court of California granted review.

Held: The Supreme Court explained that the question here was whether the amendments in Senate Bill 1391 are “consistent with and further the intent” of Proposition 57. (2016 Voter Guide, supra, section 5, at p. 145.) The Court initially remarked that it would “apply the general rule that ‘a strong presumption of constitutionality supports the Legislature’s acts.’” (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1253.) Because Proposition 57 expressly permits legislative amendments, the Court explained that it must presume the Legislature acted within its authority and uphold Senate Bill 1391 “if, by any reasonable construction, it can be said that the statute” is consistent with and furthers the intent of Proposition 57. (Id., at p. 1256.)

Proposition 57’s statement of “Purpose and Intent” provides that: “[i]n enacting this act, it is the purpose and intent of the people of the State of California to: [¶] 1. Protect and enhance public safety. [¶] 2. Save money by reducing wasteful spending on prisons. [¶] 3. Prevent federal courts from indiscriminately releasing prisoners. [¶] 4. Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles. [¶] 5. Require a judge, not a prosecutor, to decide whether juveniles should be tried in adult court.” (2016 Voter Guide, supra, text of Prop. 57, section 2, p. 141.)

Here, the Supreme Court concluded that Senate Bill 1391 amendment was fully consistent with and furthered Proposition 57’s fundamental purposes of promoting rehabilitation of youthful offenders, reducing the prison population, and each of the proposition’s other enumerated purposes. The Court explained that, under a reasonable construction of Proposition 57, public safety was advanced by adjudicating juveniles in juvenile court where rehabilitation is emphasized, thereby discouraging recidivism; cost savings would result by reducing wasteful spending on prisons; fewer future minors would be ultimately sent to adult prison (thus mitigating against federal courts indiscriminately releasing prisoners); the purpose of stopping the revolving door would be furthered by emphasizing juvenile rehabilitation in lieu of state prison; and a prosecutor’s power to directly file charges against juveniles in criminal court would be repealed. The Court added that while barring the transfer of 14- and 15-year-olds to adult court is a change from Proposition 57’s statutory provisions, that change was what makes Senate Bill 1391 an amendment to Proposition 57.

The Supreme Court therefore determined that Senate Bill 1391 was fully consistent with and furthered Proposition 57’s fundamental purposes. The Court upheld Senate Bill 1391 as a permissible amendment to Proposition 57, and accordingly reversed the judgment of the Second District Court of Appeal.

[1] The Court also remarked: “Flores asks, how do you know if a person is pretending to tie his shoe? The answer is you would have valid suspicions if the person picked an unlikely moment for the task—in the dark, just after seeing police, and just after ducking once already—and if the person took an unusually long time at it. The trial court found Flores kept crouching for a suspiciously long time. Common sense takes context into account. Certainly, there are innocent possibilities. But, in combination with the other factors, a reasonable officer had a reasonable basis for investigating further to resolve this ambiguity, because nervous and evasive behavior is a pertinent factor in determining whether suspicion is reasonable. (Wardlow, supra, 528 U.S. at p. 124.) Courts must permit police to make commonsense judgments and inferences about human behavior. (Glover, supra, __ U.S. at p. __ [140 S.Ct. at p. 1188].)”

[2] See “Blueprint for a Safer Economy” at https://covid19.ca.gov/safer-economy.

[4] Stats. 1937, ch. 677, codified in 1947, Section 31450 et seq.

[5] “Title 17 establishes the procedures for determining ‘the concentration of ethyl alcohol in samples of blood, breath, urine, or tissue of persons involved in traffic accidents or traffic violations.’” (Hernandez v. Gutierrez (4th Dist. 2003) 114 Cal.App.4th 168, 172; Cal. Code Regs., tit. 17, §§ 1215‒1222.2.)

[6] Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, section 5, p. 145 (“2016 Voter Guide”).

[7] See Welf. & Inst. Code, section 707, subd. (a)(1)–(2), as amended by Stats. 2018, ch. 1012, section 1.

[8] See People v. Superior Court (Alexander C.) (1st Dist.2019) 34 Cal.App.5th 994; People v. Superior Court (K.L.) (3rd Dist.2019) 36 Cal.App.5th 529; People v. Superior Court (T.D.) (5th Dist.2019) 38 Cal.App.5th 360, review granted Nov. 26, 2019, S257980; People v. Superior Court (I.R.) (5th Dist.2019) 38 Cal.App.5th 383, review granted Nov. 26, 2019, S257773; People v. Superior Court (S.L.) (6th Dist.2019) 40 Cal.App.5th 114, review granted Nov. 26, 2019, S258432; B.M. v. Superior Court (4th Dist.2019) 40 Cal.App.5th 742, review granted Jan. 2, 2020, S259030; Narith S. v. Superior Court (2nd Dist.2019) 42 Cal.App.5th 1131, review granted Feb. 19, 2020, S260090.