Presented by James R. Touchstone, Esq.

COVID-19 EMERGENCY

Health quarantines to prevent spread of infectious diseases have long been recognized as good cause for continuing trial dates.

Stanley v. Superior Court, 50 Cal. App. 5th 164 (1st Dist. 2020)

Facts: The People charged Rodric Detwon Stanley in March 2019 with four felony counts in violation of Penal Code section 288.7(a) and one count in violation of Penal Code section 278.5. The People further alleged enhancements for prior felony and prison term convictions.

A jury trial commenced in August 2019. However, the trial court declared a mistrial four days later. The trial court set a new trial date for April 2020, and Stanley waived his statutory right to a speedy trial until then.

On March 4, 2020, Governor Gavin Newsom declared a state of emergency in response to the global outbreak of COVID-19. On March 19, 2020, the Governor issued an executive order requiring all Californians to stay at home except for limited activities.

On March 23, 2020, Chief Justice and Chairperson of the Judicial Council Tani Cantil-Sakauye, issued an emergency statewide order suspending all jury trials and continuing them for a period of 60 days. The Chief Justice also extended by 60 days the time period provided for in Penal Code section 1382 for holding a criminal trial. The Governor subsequently issued an order suspending any limitations in legal provisions that limited the Judicial Council’s ability to issue emergency orders or rules.

On March 30, 2020, the Chief Justice issued a second statewide emergency order, authorizing superior courts to issue implementation orders that “[e]xtend the time period provided in section 1382 of the Penal Code for the holding of a criminal trial by no more than 60 days from the last date on which the statutory deadline otherwise would have expired.”

­­­ On April 29, 2020, the Chief Justice issued a third statewide emergency order, stating: “The 60-day continuance of criminal jury trials and the 60-day extension of time in which to conduct a criminal trial under Penal Code section 1382, both of which I first authorized in my order of March 23, 2020 are to be extended an additional 30 days. The total extension of 90 days shall be calculated from the last date on which the trial initially could have been conducted under Penal Code section 1382.”

On May 4, 2020, Stanley filed a motion to dismiss, arguing the extension of his trial date violated his right to a speedy trial. The trial court denied the motion, explaining that the Chief Justice’s orders were “lawful and valid extensions under the states of emergency and public health crisis.” The trial court also determined that there was good cause under Penal Code section 1382(a) to extend the trial date. The trial court set Stanley’s jury trial for July 13, 2020. Stanley petitioned for writ of mandate and prohibition challenging the trial court’s order.

Held: Penal Code section 1382 provides that an action shall be dismissed if trial is not commenced within the statutory time limits “unless good cause to the contrary is shown.” (Section 1382(a).) The California First District Court of Appeal explained that “in making its good-cause determination, a trial court must consider all of the relevant circumstances of the particular case, ‘applying principles of common sense to the totality of circumstances … .’” (People v. Sutton (2010) 48 Cal.4th 533, 546.)

The Court explained that health quarantines to prevent the spread of infectious diseases had long been recognized as good cause for continuing a trial date. In In re Venable (3rd Dist. 1927) 86 Cal.App. 585, the appellate court upheld the continuation of trial beyond the statutory limit when an “epidemic of infantile paralysis was prevalent in the town wherein the sessions of the justice’s court were held[,] and that for that reason no juries were called during that period.” (Id. at p. 587.) More recently, in People v. Tucker (2nd Dist. 2011) 196 Cal.App.4th 1313, the Second District upheld a delay to start a trial when the defendant was in custody at a correctional facility that was under quarantine because a prisoner had contracted the H1N1 flu virus. (Id. at pp. 1315, 1318.) The Second District explained that “[a] contrary holding would require trial court personnel, jurors, and witnesses to be exposed to debilitating and perhaps life-threatening illness.” (Id. at p. 1314.)

Although the 90-day continuance here was much longer than the continuances in Venable and Tucker, the First District explained that the COVID-19 pandemic was so severe that a continuance of this length was justified. The Court noted that despite state and local shelter in place orders throughout the country, according to the Centers for Disease Control and Prevention there had been nearly two million cases of COVID-19 in the country and over 110,000 deaths caused by the virus. In California, nearly 130,000 cases and over 4,600 deaths were caused by the virus.

The Court agreed with the Chief Justice’s explanation of her April 29 emergency order: “[C]ourts are clearly places of high risk during this pandemic because they require gatherings of judicial officers, court staff, litigants, attorneys, witnesses, defendants, law enforcement, and juries—well in excess of the numbers allowed for gathering under current executive and health orders.”

The First District concluded that under these circumstances, the trial court was fully justified in finding that the COVID-19 pandemic constituted good cause to continue Stanley’s trial. At this time, the First District stated, “[p]ublic health concerns trump the right to a speedy trial.” (People v. Tucker, supra, 196 Cal.App.4th at p. 1314.) Accordingly, the Court denied Stanley’s petition for writ of mandate and prohibition.

CONSTITUTIONAL LAW/POLICE CONDUCT

1. Plaintiff’s conviction of disturbing the peace did not bar his suit for excessive force because there was no inconsistency between the cases.

Kon v. City of L.A., 49 Cal. App. 5th 858 (2nd Dist. 2020)

Facts: In June 2014, limousine driver Aleksandr Kon drove in a parking lot at the Los Angeles International Airport. Officer Damien Andrews pulled in behind Kon. The parties disagreed what happened next, and the record included only the minutes from the criminal proceeding.

According to Kon’s version of subsequent events, he exited the car, then Officer Andrews aggressively approached and accused Kon of speeding. Kon denied he had been speeding. Officer Andrews returned to his motorcycle, but then ran at Kon and tackled him while Kon was on the phone. Kon was down when the officer put his knee into Kon’s back, hit Kon, and handcuffed him. Paramedics took Kon to a hospital. According to Officer Andrews’ account of the events, he saw Kon speeding in the parking lot. The officer asked for Kon’s driver’s license, insurance, and registration many times, but Kon refused. Kon approached Officer Andrews. The officer told Kon to step back and to put his cell phone down so he could handcuff Kon. Kon pulled away and resisted. Officer Andrews eventually handcuffed and subdued Kon.

Prosecutors charged Kon with resisting, delaying, or obstructing an officer in the performance of the officer’s duties (Penal Code section 148(a)(1)). Kon pled not guilty. The trial court changed the charge from misdemeanor resisting arrest to the infraction of disturbing the peace. The same day, Kon withdrew his plea of not guilty and pled no contest to disturbing the peace in violation of Penal Code section 415(1).

In June 2015, Kon filed a civil complaint for excessive force against Andrews, the City of Los Angeles (later corrected by amendment to “Los Angeles World Airport”), and Los Angeles World Police Department (the three defendants collectively hereafter, “Airport”). Kon brought state claims under Civil Code section 52.1, and for assault and battery and other causes of action. The trial court denied most of Airport’s motion for summary judgment. The trial court ruled Yount v. City of Sacramento (2008) 43 Cal.4th 885 did not bar Kon’s suit, because Kon’s conviction for disturbing the peace did not establish Officer Andrews had used only reasonable force against Kon.

The case was assigned to a different judge for trial. The court dismissed Kon’s complaint and entered judgment in favor of Airport. Although Kon’s Penal Code section 148 charge for resisting arrest had been dismissed and had never been more than an allegation, the trial court nonetheless ruled this allegation barred Kon’s civil action.

Held: The California Second District Court of Appeal discussed the importance for general judicial policy purposes of blocking relitigation of settled matters. (Yount, supra, 43 Cal.4th at pp. 893–894.) The Court explained that “[i]f past litigation settled a question, it would be inefficient to relitigate it. This concern is for finality. (Ibid.) And relitigation can create conflicting answers to the same question. This concern is for consistency. (Ibid.)” The Court explained that California courts therefore bar repetitive lawsuits unless finality and consistency concerns have no bearing. When the second case raises a different question than that settled by the first litigation, courts permit the second suit because there is no inconsistency between the two.

In Yount, an officer put inebriated Steven Yount in a patrol car. Yount then struggled in a drunken but not deadly fashion. He kicked out a car window, cursed, spit, and bit at a team of four officers. One officer intended to shoot Yount with a Taser but instead mistakenly grabbed his pistol and shot Yount, who survived. Yount pled no contest to resisting arrest in violation of Penal Code section 148(a)(1). He then sued the police for use of excessive force.

The California Supreme Court concluded that Yount’s conviction for resisting arrest did not bar Yount’s civil claims about excessive force, even though the second civil suit concerned the same event as the first criminal suit. The Supreme Court determined that the two lawsuits were related, but not so similar as to be inconsistent with each other.

Reviewing Yount, the Second District observed that Yount had struggled furiously, but officers never feared for their lives. Yount’s criminal conviction for resisting arrest did not establish police were right to use deadly force against him. (Yount, supra, 43 Cal.4th at p. 898.) Thus, Yount’s second litigation raised a question beyond what the first case settled. The Second District explained that Yount governed here.[1]

The Court considered whether the second lawsuit, Kon’s civil case, was consistent with the first – his criminal prosecution. After the first case that resulted in Kon’s conviction for disturbing the peace, Kon and Officer Andrews continued to dispute here (as their conflicting accounts described above indicate) whether Officer Andrews’ use of force was reasonable or excessive. Kon’s conviction for disturbing the peace under Section 415(1) – which applied to “[a]ny person who unlawfully fights in a public place or challenges another person in a public place to fight” – did not establish that Officer Andrews used only reasonable force against Kon. The Second District elaborated: “How you act and how police respond are two different issues. The criminal case was about the former. This civil case is about the latter. That is, fighting or challenging someone to fight does not entitle the other to respond with excessive force. Conversely, you can disturb the peace even though the police later beat you up. Their bad response is not a defense to your bad act.”

The Second District Court of Appeal thus concluded that under Yount, Kon’s conviction of disturbing the peace did not bar his suit for excessive force, because there was no inconsistency between the two cases. Nor was finality a concern because the second case asked whether the officer’s use of force was reasonable or unreasonable, which the first case never answered. Accordingly, the Court reversed.

1. Probation exception for warrantless searches is inapplicable if police are unaware of probation search condition at the time.

People v. Rosas, 50 Cal. App. 5th 17 (2nd Dist. 2020)

Facts: In July 2017, Oxnard Police Officers Ignacio Coronel and Christopher Salvio responded to a report around 2 a.m. of a suspicious person in a passenger truck in front of a residence. Lucio Sedeno Rosas was sitting in the driver’s seat of a parked truck with the driver’s side door open as the officers approached. Upon questioning by Officer Salvio, Rosas stated that he lived two houses away and came outside to smoke and listen to music. He gave his name and address, and said the truck belonged to his father with whom he lived. During this questioning, Officer Coronel walked over to the front passenger window of the truck, using his flashlight to illuminate through the slightly open window and into the front passenger compartment before turning it off. Although he did not provide his driver’s license or other personal identification, Rosas provided the truck’s registration card from the glove box to Officer Salvio confirming his father’s ownership of the truck and his father’s address.

The officer asked if Rosas was on “probation or parole or anything like that?” Rosas replied, “No.” Officer Salvio called police dispatch to run a records check to confirm Rosas’ identity and determine if he had any warrants or was on probation or parole. While the officers waited for this information, Officer Coronel turned his flashlight on again, pointed the end of the light through the slightly open front passenger window, and began moving the light around again to illuminate the interior. Meanwhile, Officer Salvio conversed with Rosas.

The officers both heard dispatch verify Rosas’ identity and address, and state Rosas was “on probation out of Kern County for [a] 647.6 [and] also a 290 registrant.” When Officer Salvio told him that he was on probation, Rosas repeatedly stated that he was not on probation. The information conveyed by the dispatcher was erroneous as Rosas was not on probation.

Officer Salvio later testified that the dispatcher did not tell him that Rosas was subject to search terms as a condition of his probation. Yet the officer nonetheless decided to conduct a probation search of Rosas based upon the information he had received from dispatch because, he said, “I was a fairly new officer and I believed probation to commonly be associated with supervised release, which usually includes search terms.” The officer found a bag containing a substance that appeared to be methamphetamine in Rosas’ pocket.

Officer Coronel testified that when he had looked through the front passenger window of the truck, he had seen a blanket covering a “bulge” underneath. Officer Coronel testified that when Rosas directed his attention to the other officer, “I took the opportunity to reach through the cracked window and uncover the blanket.” Under the blanket, Officer Coronel discovered a glass pipe with residue that appeared to be methamphetamine.

Rosas was cited for violations of Health and Safety Code sections 11377(a) and 11364(a), and was released with a notice to appear.

The trial court denied Rosas’ motion to suppress the evidence obtained from the warrantless searches of his person and the truck. The trial court upheld the warrantless searches that were based on the information that the officers received from dispatch indicating that Rosas was on probation. Although the dispatcher did not convey any information indicating that Rosas was subject to search terms as a condition of his probation, the trial court found that “the officer[s] made the logical conclusion that [probation] me[ant] search terms because 99.9 percent of the time that’s true.”

Rosas pled guilty to possessing methamphetamine with a prior conviction that required him to be registered as a sex offender under Section 11377(a). In exchange for his plea, the misdemeanor charge of possessing drug paraphernalia under Section 11364(a) was dismissed. His sentence was suspended and he was placed on three years’ formal probation with various terms and conditions. Rosas appealed the judgment, arguing the trial court erred in denying his motion to suppress.

Held: The California Second District Court of Appeal observed that a warrantless search is unreasonable per se under the Fourth Amendment unless one of the established and well-delineated exceptions applies,[2] such as the exception for probation searches.[3] However, “the [probation] exception is inapplicable if police are unaware of the probation search condition at the time of a warrantless search.” (People v. Hoeninghaus (6th Dist. 2004) 120 Cal.App.4th 1180, 1184, italics added.) “Without such advance knowledge, the search cannot be justified as a proper probation search, for the officer does not act pursuant to the search condition.” (People v. Romeo (1st Dist. 2015) 240 Cal.App.4th 931, 939–940, italics added.)

Here, the Court explained that even assuming that the officers reasonably concluded from the information dispatch provided that Rosas was on probation, they had no reason to believe he was subject to search terms as a condition of that probation. The Second District found therefore that the warrantless searches of Rosas’ person and truck could not be upheld as probation searches.

Moreover, the Court of Appeal determined that neither Officer Salvio’s subjective belief that all probationers were subject to search terms because he was at the time a “fairly new officer,” nor the trial court’s assertion[4] that “99.9 percent” of probationers were subject to search terms was sufficient to establish the good faith exception to the exclusionary rule. The Second District explained: “‘[The] good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances.’ [Citation.]”[5] The Court also observed that the People offered no evidence to meet their burden of proving that the evidence was nevertheless admissible under the good faith exception to the exclusionary rule. Nor did the Court find that the record supported a finding that Officer Coronel had reasonable suspicion to search under the blanket for weapons because Officer Coronel did not articulate any facts that would support a protective search of the truck.

The Second District accordingly reversed. The Court remanded with directions that the trial court permit Rosas to withdraw his guilty plea and enter an order granting his motion to suppress.

A dissenting judge considered the majority opinion “a textbook example of the exclusionary rule gone awry.” The dissent agreed with the trial court that the search could be upheld as a probation search, concurring in the trial court’s observation that search terms existed in 99 percent of the cases where probation was involved. The officers therefore acted in good faith, in the dissent’s view, and suppression was not warranted as their actions were reasonable. The dissenting judge would have affirmed the trial court’s order denying suppression.

1. Evidence of marijuana in car does not provide certainty that the car contains contraband to justify Fourth Amendment search.

People v. Johnson, 2020 Cal. App. LEXIS 533 (3rd Dist. June 15, 2020)

Facts: Dammar Darrell Johnson was parked on the side of a road when Stockton Police Officers Aaron Clark and William Hall approached to investigate his car’s missing registration tag. Johnson stepped out of the car. He refused to return when asked, and yelled at the officer in agitation. When Officer Clark grabbed Johnson’s arm to maintain control, Johnson tensed and pulled away. Johnson continued to pull away and yell as the officers handcuffed him. After some resistance, the officers arrested Johnson for resisting an officer and placed him in the patrol car.

After Johnson was detained, the officers approached Johnson ‘s car to perform what the officers described as a tow inventory search because the car’s registration was expired. Approaching the driver’s side door, Officer Clark smelled marijuana emanating from the car and saw in the center console a plastic baggie knotted at the top containing approximately two grams of marijuana in plain view. Officer Clark continued to search after finding the marijuana, but he considered the subsequent search to be a probable cause search. The officers found a loaded handgun in the rear cargo area of the car during this purported probable cause search.

Johnson moved to suppress the evidence from the search, but his motion and renewed motion were denied. The magistrate and trial judge found the search was not an inventory search, but upheld it based on probable cause. Johnson pled no contest to being a felon in possession of a firearm. Johnson appealed, challenging the trial court’s denial of his renewed motion to suppress.

Held: The Fourth Amendment to the United States Constitution guarantees the right to be free from unreasonable searches and seizures. Warrantless searches are per se unreasonable, “subject only to a few specifically established and well-delineated exceptions.”[6] One such exception is the automobile exception, which provides that “police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.” (People v. Evans (2011) 200 Cal.App.4th 735, 753; see also United States v. Ross (1982) 456 U.S. 798, 820–821.) In determining whether a reasonable officer would have probable cause to search, courts must consider the totality of the circumstances. (Illinois v. Gates (1983) 462 U.S. 213, 230–231, 238.)

Approved by voters in November 2016, Proposition 64 legalized the possession of up to 28.5 grams of marijuana by individuals 21 years or older (Health and Safety Code section 11362.1(a)(1)), except under certain circumstances where statutory provisions prohibit such use and possession. Notwithstanding any other such statutory proscription, Section 11362.1(c) provides that “[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” Thus, Section 11362.1(c) does not apply when the totality of the circumstances gives rise to a fair probability that an existing marijuana regulation was violated when the search occurred.

On appeal, Johnson argued that the officers did not have probable cause to search his car because there was no evidence of marijuana use, and the marijuana found in plain view was of a legal amount. The People countered that the officers had probable cause in light of pre-Proposition 64 precedent and, in any event, there was evidence Johnson was “operating a vehicle with an open container of marijuana ([Health & Safety Code section11362.3(a)(4)]), or driving a vehicle with an unsecured container of marijuana ([Vehicle Code section 23222(b)]).” The People thus asserted that Section 11362.1(c) did not apply.

Rejecting the People’s pre-Proposition 64 precedent argument, the California Third District Court of Appeal explained that after Proposition 64 was enacted, it was no longer true that the odor of marijuana would always provide probable cause to search a car. The Court stated that Section 11362.1(c) definitively affects probable cause determinations, as provides, “[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” (Italics added.) Under Section 11362.1(a)(1), possession and transportation of up to 28.5 grams of marijuana by individuals 21 years or older is deemed lawful conduct.

Nor did the Court find Vehicle Code section 23222(b) applicable. Section 23222(b)(1) prohibits an individual from having “in their possession on their person, while driving a motor vehicle … a receptacle containing cannabis or cannabis products … which has been opened or has a seal broken, or loose cannabis flower not in a container … .” (Italics added.) Officer Clark testified the car was parked when he first saw and approached it, and there was no evidence presented to indicate Johnson had driven the car with the marijuana baggie inside when the search began.

Regarding the People’s Health and Safety Code section 11362.3(a)(4) contention, the Third District observed that the provision prohibits possessing “an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment” of various types of vehicles. Based on the plain language of the statute and its legislative history, the Court concluded Section 11362.3(a)(4) applied to a container or package of cannabis that was open when found in the car. The Court determined that the plastic baggie knotted at the top was not open when found and, therefore, there was no Section 11362.3(a)(4) violation.

The Third District Court of Appeal observed that the facts here consisted of a parked car missing a registration tag and having an expired registration, the odor of marijuana emanating from the car, the observation of a tied baggie containing “a couple grams” of marijuana in the car’s center console, and Johnson’s actions outside the car in resisting the officers. The Court concluded that the totality of these circumstances did not amount to a “fair probability that contraband or evidence of a crime” would be found in Johnson’s car. (Gates, supra, 462 U.S. at p. 238.), and thus found that the search of Johnson’s car violated the Fourth Amendment.

The Court of Appeal therefore reversed; and remanded to the trial court with directions to set aside the order denying the motion to suppress, enter an order granting the motion, and to allow Johnson to move to withdraw his plea.

1. Police officers’ failure to precisely comply with police department towing policy’s inventory search direction did not render search invalid.

United States v. Magdirila, 2020 U.S. App. LEXIS 19477 (9th Cir. June 23, 2020)

Facts: Inglewood Police Department Officers Mark Robinson and Tyler Villicana were on patrol late one night as part of a tactical response to a surge in gang activity in Inglewood. Officer Robinson observed a black Infiniti stopped in an alley with its engine running and lights illuminated as if the driver had the foot on the brake. The vehicle was parked in violation of the municipal code and lacked permanent license plates, in violation of Vehicle Code section 5200(a).

Officer Villicana activated the cruiser’s lights and siren, causing the vehicle’s passenger to exit the vehicle. Officer Villicana questioned the passenger, who admitted he was on parole. Officer Villicana then detained the passenger pending further investigation, and ran a warrants inquiry for the passenger. The inquiry confirmed that the passenger was on parole and subject to a search condition.

As Officer Villicana questioned the passenger, Officer Robinson approached the Infiniti and observed John Magdirila sitting in the driver’s seat with the engine on and his foot on the brake. Magdirila admitted he did not have a driver’s license and stated the vehicle belonged to a friend. Officer Robinson, pursuant to the Inglewood Police Department Vehicle Towing and Release Policy (the “Policy”), decided “from the moment that . . . [Magdirila] admitted he did not have a driver’s license” to impound the vehicle.

Officer Robinson then searched the glove compartment of the vehicle and found a bag of what he believed was crystal methamphetamine, for which Magdirila claimed ownership. Officer Robinson arrested Magdirila for possession of methamphetamine, and searched the rest of the vehicle. During the inventory search, Officer Robinson found a lockbox in the back seat of the vehicle resting on top of a backpack. Magdirila claimed ownership of the lockbox and backpack. Inside the lockbox, Officer Robinson found a loaded semi-automatic pistol, an air pistol, a USB drive, and Magdirila’s EBT card.

Officer Robinson’s decision to impound the vehicle triggered a duty under the Policy to take an “accurate” inventory of the vehicle’s contents on a CHP 180 form. The Policy required officers to list “[a]ll property in a stored or impounded vehicle” and to “be as thorough and accurate as practical in preparing an itemized inventory.” In the “REMARKS” section of the CHP 180 form, Officer Villicana cross-referenced the police report and noted that the vehicle contained an “IPHONE/APPLE WATCH.” In the police report, Officer Robinson listed items contained in the car including, but not limited to, a black backpack, air pistol, ink cartridges, USB flash drive, and an American Express credit card.

Magdirila moved to suppress “all evidence and statements obtained as a result of his unlawful arrest, search, and questioning.” After the hearing, the District Court found that Officer Robinson impounded the vehicle pursuant to the Policy at the moment that Magdirila admitted that he did not have a driver’s license. The District Court also found that the record demonstrated that Officer Robinson conducted an inventory search of the Infiniti pursuant to the Vehicle Inventory requirements set forth in Section 510.4 of the Policy, and that Officer Villicana completed CHP Form 180 pursuant to the Vehicle Storage Report requirements set forth in the Policy’s section 510.2.1. Based on its findings, the District Court denied Magdirila’s motion to suppress, holding that the contraband was the fruit of a properly conducted inventory search.

Magdirila subsequently entered a conditional guilty plea, and the District Court sentenced him to 41 months in prison. Magdirila appealed the denial of his motion to suppress.

Held: On appeal, Magdirila argued that the officers’ inventory search was pretext for an illegal investigatory search. He also argued that the officers conducted their search in a manner inconsistent with the Policy, as a component of his pretext argument. The District Court had found that the officers properly filled out the CHP 180 form. That finding, in turn, supported the District Court’s holding that the officers had performed a valid inventory search.

The Ninth Circuit Court of Appeals explained that inventory searches that materially deviate from department policy can be invalid. United States v. Garay, 938 F.3d 1108, 1111 (9th Cir. 2019). However, minor noncompliance with department policies does not invalidate an otherwise lawful inventory search. Id. at 1112. The Court also explained that a search conducted pursuant to a regulatory scheme is invalid if the officer’s sole purpose in performing it is investigatory. United States v. Orozco, 858 F.3d 1204, 1210 (9th Cir. 2017). If, however, the officer’s purpose is administrative, the inventory search is valid. United States v. Johnson, 889 F.3d 1120, 1126 (9th Cir. 2018).

The Court explained that in Garay, sheriffs performed an inventory search of a vehicle after engaging in a high-speed chase but failed to fill out the inventory search form required by the sheriff’s department policy. 938 F.3d at 1110-11. The Ninth Circuit there nevertheless had held that the failure to complete the form under the circumstances was not a “material deviation from policy” and did not make the search invalid. Id. at 1112.

Here, the Court stated that the instant case was “considerably clearer than Garay.” Although the officers here did not include “all property” on the CHP 180 form as required by Section 510.2.1, they did fill out an inventory form that included some of the property, including an iPhone and an Apple watch. Moreover, the items contained in the vehicle, but unlisted on the CHP 180 form—including a backpack, Magdirila’s welfare benefits card, the Sentry lockbox, an air gun, a flash drive, and ink jet toner cartridges—were listed on the police report, which Officer Villicana cross-referenced on the CHP 180 form. The Court found that by creating a list of recovered items and incorporating it into the CHP 180 form, Officer Villicana complied substantially with the Policy’s direction to inventory the property in an impounded vehicle. The Court therefore held that the officers’ failure to precisely follow Section 510.4 of the Policy, in and of itself, did not render the inventory search invalid.

The Ninth Circuit next considered Magdirila’s argument that the officers’ inventory search was pretext for an illegal investigatory search. The Court explained that “[w]here the district court does not make a finding on a precise factual issue relevant to the Fourth Amendment analysis, we ‘uphold a trial court’s denial of a motion to suppress if there was a reasonable view to support it.’ United States v. Gooch, 506 F.3d 1156, 1158 (9th Cir. 2007).” The Court rejected Magdirila’s contention that there was not a “reasonable view to support” the lower court’s implied conclusion that Officer Robinson’s purpose in conducting the search was administrative rather than investigatory. Given the early stage at which Robinson decided to impound the vehicle (i.e., before discovering methamphetamine), the Ninth Circuit found that it was a “reasonable view” of the evidence that Officer Robinson’s intent at the time the vehicle was impounded was administrative rather than investigatory. Id. at 1158.^[7]

The Ninth Circuit Court of Appeals accordingly affirmed the denial of Magdirila’s motion to suppress. The Court of Appeals vacated certain conditions of supervised release that the District Court had imposed, and remanded for their revision.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 22, available at www.jones-mayer.com.

EMPLOYMENT

1. Employers who fire individuals merely for being gay or transgender violate Title VII of the Civil Rights Act.

Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020)

Facts: Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee.

Bostock brought suit under Title VII of the Civil Rights Act of 1964 alleging unlawful discrimination on the basis of sex. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so his suit could be dismissed as a matter of law.

Donald Zarda worked as a skydiving instructor in New York. After several seasons with his company, Zarda mentioned that he was gay and, days later, was fired. Aimee Stephens presented as a male when she was hired by a funeral home business in Michigan. However, she was fired in her sixth year of employment after she informed her employer that she planned to “live and work full-time as a woman.” Like Bostock, Zarda and Stephens each brought suit under Title VII alleging unlawful discrimination on the basis of sex. In Zarda’s case, the Second Circuit concluded that sexual orientation discrimination does violate Title VII and allowed his case to proceed. In Stephens’ case, the Sixth Circuit ultimately reached a decision along the same lines as the Second Circuit’s, holding that Title VII bars employers from firing employees because of their transgender status.

The Supreme Court of the United States granted certiorari to resolve the disagreement among the Circuit Courts over the scope of Title VII’s protections for homosexual and transgender persons.

Held: In a 6-3 decision, the United States Supreme Court held that an employer who fires an individual merely for being gay or transgender violates Title VII. Justice Gorsuch, writing for the majority, was joined by Chief Justice Roberts, and Justices Kagan, Breyer, Sotomayor, and Ginsburg in the opinion. The judgments of the Second and Sixth Circuits were affirmed. The judgment of the Eleventh Circuit was reversed, and the case was remanded.

Justice Gorsuch began by stating that the question here was whether an employer can fire someone simply for being homosexual or transgender. “The answer,” said Justice Gorsuch, “is clear.” “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Gorsuch observed that Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. section 2000e-2(a)(1). Justice Gorsuch explained that the Supreme Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.

The parties conceded that the term “sex” in 1964 referred to biological distinctions between male and female. Next, Justice Gorsuch observed that the Supreme Court had previously determined that “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350 (2013) (citing Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176 (2009); quotation altered). Justice Gorsuch explained that the “because of” term incorporates the but-for causation standard (Nassar, at 346, 360), in which causation is established whenever a particular outcome would not have happened “but for” the purported cause. Justice Gorsuch explained that for Title VII, the adoption of the traditional but-for causation standard meant a defendant could not avoid liability merely by citing some other factor that contributed to its challenged employment decision. In other words, if the plaintiff ‘s sex is one but-for cause of that decision, that is enough to trigger the law.[8]

Continuing the majority’s textual analysis of Title VII, Justice Gorsuch explained that the term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).”[9] In such “disparate treatment” cases, the Supreme Court had held that the difference in treatment based on sex must be intentional.[10] Justice Gorsuch then explained that Title VII’s repeated use of the term “individual” meant that the statute’s focus was on “[a] particular being as distinguished from a class.”[11]

Justice Gorsuch declared that these terms produced the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex, even if other factors besides the plaintiff’s sex contributed to the decision or if the employer treated women as a group the same when compared to men as a group. If changing the employee’s sex would have yielded a different choice by the employer, a Title VII violation had occurred. From this analysis, Justice Gorsuch perceived an “equally simple and momentous” corollary applicable to the cases here: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Justice Gorsuch posited an example of an employer with two employees, both of whom are attracted to men. To the employer, the two individuals are identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee because he is attracted to men while not firing the otherwise identical female employee, the employer discriminates against him for traits or actions it tolerates in his female colleague in violation of Title VII. The same analysis applied to an employer who fires a transgender employee who identified as male at birth and female later during employment, while not firing another otherwise identical employee who considered herself female since birth.

In sum, Justice Gorsuch explained that because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. Addressing intent, Justice Gorsuch stated: “Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decision making.”

One of the employers’ arguments was that because Congress did not explicitly specify homosexuality and transgender status in Title VII, those characteristics were implicitly excluded from Title VII’s scope. The majority agreed that homosexuality and transgender status are distinct concepts from sex, but nonetheless maintained that discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex, stating, “the first cannot happen without the second.” Moreover, the Supreme Court had always treated Title VII as a broad rule, and “when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.” Justice Gorsuch observed that the concepts of “sexual harassment” and “motherhood discrimination” were not expressly included in Title VII, yet the Supreme Court had found that Title VII’s scope encompassed each.[12]

The employers also contended that in 1964, few would have expected Title VII to apply to discrimination against homosexual and transgender persons. However, Justice Gorsuch explained that “[l]egislative history, for those who take it into account, is meant to clear up ambiguity, not create it.” Milner v. Department of Navy, 562 U. S. 562, 574 (2011). Justice Gorsuch found no such ambiguity about how Title VII’s terms applied to the facts here.

Justice Alito, joined by Justice Thomas, dissented. Justice Alito observed that in the previous year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” but the bill stalled in the Senate. Justice Alito stated that with the opinion here, the majority had “essentially taken the bill’s provision on employment discrimination and issued it under the guise of statutory interpretation,” thereby usurping the constitutional authority of the other branches. Wrote Justice Alito, “There is only one word for what the Court has done today: legislation.” Justice Alito explained that the question in these cases was not whether discrimination because of sexual orientation or gender identity should be outlawed, but “whether Congress did that in 1964.”

Justice Alito noted that, in the majority’s interpretation of Title VII, discrimination because of sexual orientation or gender identity inherently constituted discrimination because of sex. Justice Alito found the majority’s view that the terms of Title VII could not reasonably be interpreted any other way “breathtaking[ly]” “arrogant,” maintaining that there was “not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted.” Justice Alito maintained that it was possible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex, because homosexuality and transgender status are distinct concepts from sex. Thus, Justice Alito determined, the Court’s arguments were directly contrary to the statutory text.

Justice Kavanaugh issued a separate dissent, arguing that, with its decision here, the Court usurped the role of Congress in expanding Title VII to prohibit employment discrimination because of sexual orientation.[13] Justice Kavanaugh explained that where the ordinary meaning of the words in a statute differed from the literal meaning of those words, the ordinary meaning holds sway in court. Justice Kavanaugh maintained that the ordinary meaning of the phrase “discriminate because of sex” in 1964 did not encompass discrimination because of sexual orientation. Justice Kavanaugh stated that the case here involved sexual orientation discrimination, which has long and widely been understood as distinct from, and not a form of, sex discrimination. Thus, Title VII did not apply.

1. Plain language of County’s Civil Service Rules did not authorize Sheriff’s Department’s practice of extending probation by reassigning deputies under investigation to administrative duty.

Trejo v. Cnty. of L.A., 50 Cal. App. 5th 129 (2nd Dist. 2020)

Facts: Employment at the Los Angeles County (“County”) Sheriff’s Department (“Department”) is subject to the County’s civil service rules (“Rules”). The Rules provide for an initial probationary period after the employee is appointed for County employers to evaluate prospective employees before they are hired into permanent roles. Rule 12.02.A specifies this probationary period “shall be no less than six nor more than 12 calendar months from the date of appointment.” Deputy sheriffs serve 12-month probationary periods.

If a deputy sheriff is investigated for misconduct while still on probation, it is the Department’s policy to place that deputy on “[r]elieved of duty status” pending the results of the investigation. Deputies placed on “relieved of duty status” may be reassigned to modified duties, such as administrative jobs, that do not involve three of the five essential duties of a sheriff, namely, qualifying with weapons; making a forcible arrest; and seizing evidence or contraband. Because deputies on modified duty do not perform all the essential duties of being a deputy sheriff, the Department has a policy in which it “extends” the 12-month probationary period for the duration of the investigation.

Christopher Trejo was hired as a deputy sheriff generalist in February 2014, and his 12-month probationary period began on the day he was hired. About four months later, Trejo was involved in a use-of-force incident. Trejo was relieved of duty in June 2014, pending an investigation into violation of use-of-force policies. He was issued a civilian identification card, relieved of his gun and badge, and no longer possessed police powers. Trejo was then reassigned to the records unit pending this investigation. In this modified position, Trejo did not perform the essential duties of a deputy sheriff and continued to be paid.

In August 2014, the Department provided Trejo with a letter purporting to extend his statutory 12-month probation period “due to [his] relieved of duty status.” The letter also stated, “Upon your return to your assigned duties, … your probationary period will be recalculated.” Nearly 18-months later in January 2016, the Department terminated Trejo with the perspective that Trejo was a probationary employee. Trejo’s request to be reinstated as a deputy sheriff was denied.

Trejo petitioned for a hearing before the County’s Civil Service Commission, asserting he was a permanent employee at the time of his termination, but the Commission agreed with the Department’s claim that Trejo’s petition was untimely.

Trejo then petitioned for writ of mandate in superior court, arguing the Department’s practice of extending probation while investigating claimed misconduct violated the Rules. The trial court agreed, finding Trejo became a permanent employee 12 months after his hiring date. The trial court ordered the County to, among other things, set aside Trejo’s January 2016 dismissal and to provide Trejo with backpay, as required by law. The County appealed.

Held: The California Second District Court of Appeal explained that the main issue on appeal was whether the Department’s policy of “extending” the maximum 12-month probationary period by placing a deputy under investigation into an administrative job was lawful under the Rules. The County argued that the trial court erred in concluding that Trejo became a permanent employee 12 months after his probationary period began.

Rule 12.02.B provides in part: “If an employee is absent from duty during a probationary period, the appointing power may calculate the probationary period on the basis of actual service exclusive of the time away.” (Italics added.) According to Rule 2.00, “words used in these Rules are understood to have the following special meanings as set out in Rules 2.01 through 2.58…” The Court explained that rule 2.00 thus instructed that the Court would have to apply the definitions found in rule 2 to the remainder of the Rules.

Rule 2.01 defines “actual service” as follows: “‘Actual service’ means time engaged in the performance of the duties of a position or positions including absences with pay….” (Italics added.) The Court explained that when “a definitional section says that a word ‘means’ something, the clear import is that this is its only meaning.”[14] The Court determined that the plain meaning of rule 12.02.B could be derived by applying the defined term “actual service” from rule 2.01.

Four months after Trejo’s hiring day, he was placed into an administrative job. The Second District stated that rule 2.01 indicated that during the following eight months Trejo remained in “actual service” with the County because he was “engaged in the performance of the duties of a position or positions including absences with pay.” The Court thus determined that the Department must credit those eight months toward the completion of Trejo’s probation period.

The Court explained that when rules 2.01 and 12.02.B were read together, their plain meaning was that so long as the probationer is engaged in the duties of “a position or positions,” the probationer is not “absent from duty.” The Court maintained that “Rule 2.01 applies to rule 12.02.B because rule 2.00 says it does, and rule 2.01 does not limit ‘absences’ to absences from duty from the position the employee was hired into.” Moreover, the drafter’s usage of the complete phrase “a position or positions” demonstrated they intended rule 2.01’s definition of “actual service” to apply to employees even after they are to be transferred into a different assignment. Otherwise, stated the Court, it would make no sense to use the plural “positions” since every employee begins employment in just one “position.” The Court thus agreed with the trial court that a County employee could not have his probation extended if he was placed in another “position or positions.”

Applying this analysis here, the Second District decided that Trejo was not “absent from duty” during the period he was assigned modified duties because the work he performed, although administrative, was work performed in “a position.” The Second District concluded that the trial court thus correctly held that Trejo became a permanent employee 12 months after his probationary period began. Accordingly, the Second District affirmed.

PUBLIC RECORDS

California Public Records Act section 6259 does not limit jurisdiction over CPRA dispute to superior court of county where disputed records are located.

The Cal. Gun Rights Found. v. Superior Court, 49 Cal. App. 5th 777 (2nd Dist. 2020)

Facts: The California Public Records Act (Government Code section 6250 et seq.; “CPRA” or the “Act”) provides that “‘[a]ny person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under [the Act].’” (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 426; see Section 6258.)

The Act’s Section 6259 provides, as relevant here: “Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why the officer or person should not do so.” (Section 6259(a).)

The California Gun Rights Foundation (“Foundation”) requested records “controlled, actually and/or constructively possessed and/or used by” California’s Department of Justice and California Attorney General Xavier Becerra (collectively, the “State”) under the CPRA. After the State denied or “unreasonably delayed” the records request, the Foundation filed a verified petition in the Los Angeles Superior Court seeking a writ of mandate, as well as injunctive and declaratory relief.

The State moved to transfer the action to the Sacramento Superior Court, submitting evidence that the requested records and all of the individuals responsible for maintaining the records and responding to CPRA record requests for those records worked in Sacramento. In opposition, the Foundation argued that Code of Civil Procedure section 401 provides that whenever an action against a state agency must or may be brought in Sacramento County, “the same may be commenced and tried in any city or city and county of this State in which the Attorney General has an office.” (Code of Civil Procedure section 401(1).) Because the Attorney General maintained an office in Los Angeles, the Foundation argued that venue was proper there.

The trial court granted the State’s motion to transfer the action to Sacramento County. The Foundation petitioned for review of the trial court’s order.

Held: The California Second District Court of Appeal explained that courts “will not infer a legislative intent to entirely deprive the superior courts of judicial authority in a particular area; the Legislature must have expressly so provided or otherwise clearly indicated such an intent.” (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 270, italics added.) The Court found the CPRA contained no clear indication of a legislative intent to limit the fundamental jurisdiction of the superior courts. Instead, the Court of Appeal observed that Section 6258 states that a proceeding to enforce the right to inspect or receive a copy of a public record may be adjudicated “in any court of competent jurisdiction.” (Italics added.) The Second District deemed the Los Angeles Superior Court as such a court in the context here.

Moreover, although Section 6259 references “the superior court of the county where the records or some part thereof are situated,” this language pertained to venue, which is the place of trial, i.e., a particular county of the state. The Second District explained that as a general rule, the issue of venue “does not involve a question of ‘fundamental’ or ‘subject matter’ jurisdiction over a proceeding. ‘… Thus, venue is not jurisdictional in the fundamental sense; and…a change of venue from the superior court of one county to the same court in another county does not affect its jurisdiction over the subject matter of the cause.’ [Citations.]” (People v. Simon (2001) 25 Cal.4th 1082, 1096.) The Second District found nothing in the language of Section 6259 to suggest that it was intended to limit or withdraw the courts’ power to adjudicate disputes under the CPRA. The Second District therefore concluded that Section 6259 governed venue, not jurisdiction, and thus the section did not deprive a superior court of subject matter jurisdiction over a public records dispute even if the requested records were not situated in the county where the lawsuit was brought. Accordingly, although the records sought here were not situated in Los Angeles County, the Los Angeles Superior Court nonetheless had jurisdiction over this action.

The Second District further concluded that the venue provision of Section 6259 did not override Code of Civil Procedure section 401, which provides that if an action may be brought against the state or its agencies in Sacramento, it also may be brought anywhere the Attorney General has an office. Because the instant action could be brought in Sacramento County, the Court determined that it could also be brought in Los Angeles, where the Attorney General maintained an office.

The Second District Court of Appeal thus concluded that the trial court erred in transferring the case to Sacramento County. The Court granted the Foundation’s petition for writ of mandate, and directed the trial court to vacate its order transferring the action to Sacramento County.

MARIJUANA

Possessing unauthorized cannabis in prison in violation of Penal Code section 4573.8 was not affected by Proposition 64’s legalization of possession of 28.5 grams of cannabis.

People v. Whalum, 50 Cal. App. 5th 1 (4th Dist. 2020)

Facts: In August 2015, Artemis Whalum pled no contest to unauthorized possession of drugs in prison in violation of Penal Code section 4573.8 and admitted a prior strike. The trial court imposed a sentence of two years eight months to run consecutive to the time he was currently serving in prison.

In the November 2016, the voters adopted Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act. Among other things, the act included a provision legalizing certain activity involving 28.5 grams or less of cannabis by persons 21 years of age or older (Health and Safety Code section 11362.1), except in except in specifically identified circumstances.

In July 2019, the public defender, on behalf of Whalum, filed a petition to dismiss and recall Whalum’s sentence based on the adoption of Proposition 64, which made it legal for persons at least 21 years of age to possess up to 28.5 grams of cannabis, except in specifically identified circumstances. Whalum’s petition relied on Section 11361.8(a), which states that “[a] person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense, or who would have been guilty of a lesser offense under [the law enacted by Proposition 64] had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal … .”

At an August 2019 hearing, the trial court denied the petition, concluding that it was persuaded by the First District’s opinion in People v. Perry (1st Dist. 2019) 32 Cal.App.5th 885. Perry held that in enacting Proposition 64 the voters did not intend to affect statutes making it a felony to possess cannabis in a correctional institution. Whalum appealed from the order denying his petition.

Held: The California Fourth District Court of Appeal first observed that the issue of whether Proposition 64 affected the existing prohibitions against the possession of cannabis in a correctional institution is currently pending before the Supreme Court of California, specifically based on a disagreement between the First District in Perry and the Third District in People v. Raybon (3rd Dist. 2019) 36 Cal.App.5th 111. The Supreme Court granted review in Raybon to resolve the issue.[15]

Whalum pled no contest to violating Penal Code section 4573.8 (“Section 4573.8”), which provides in relevant part: “Any person who knowingly has in his or her possession in any state prison … drugs in any manner, shape, form, dispenser, or container, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming drugs…[without appropriate authorization by certain correctional authorities or correctional facility rules]… is guilty of a felony.” The Court explained that the issue here was whether Proposition 64 affected laws such as Section 4573.8 criminalizing the possession of cannabis as contraband in a correctional institution.

Added by Proposition 64, Health and Safety Code section 11362.1 (“Section 11362.1”) provides in relevant part:

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

“(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of cannabis not in the form of concentrated cannabis; [¶] … [¶]

“(4) Smoke or ingest cannabis or cannabis products …” (Section 11362.1.)

The Fourth District explained from this statutory language that the provisions of Section 11362.1(a) prevail over all contrary laws prohibiting the activities that it legalizes, except as “[s]ubject to Sections 11362.2, 11362.3, 11362.4, and 11362.45.”

The Court observed that Section 11362.45 lists certain laws that “[s]ection 11362.1 does not amend, repeal, affect, restrict, or preempt.” The Court explained that these laws are therefore “carved out from Proposition 64’s legalization of adult cannabis.” Specifically relevant here, subdivision (d) of section 11362.45 carves out “[l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation or the Division of Juvenile Justice, or on the grounds of, or within, any other facility or institution referenced in Section 4573 of the Penal Code.” (Section 11362.45(d); italics added.) The Fourth District observed that this carve-out language was the only reference in the text of Proposition 64 as to how adult cannabis legalization was intended to affect criminal laws concerning the regulation of cannabis in correctional institutions.

The Third District in Raybon concluded that the carve out did not apply to a law like Section 4573.8 that criminalizes the possession of cannabis in a correctional institution, because the plain language of Section 11362.45 refers solely to “smoking and ingesting.” (Raybon, supra, 36 Cal.App.5th at pp. 121–122.)

However, the Fourth District agreed with the reasoning of the First District in Perry that interpreted the carve out as sufficiently broad to cover possession of cannabis in a correctional institution because of Section 11362.45’s “pertaining to” text. (Perry, supra, 32 Cal.App.5th at p. 891.) Perry consequently concluded that Proposition 64’s carve out in Section 11362.45(d) was written “in extremely broad terms,” which encompassed a law that criminalizes the possession of cannabis in a correctional institution. (Perry, at pp. 892–893.)

After reviewing definitions of “pertain” in several dictionaries, the Fourth District determined that “[t]he phrase is plainly meant to refer to a relation between two things rather than an exact correspondence.” Moreover, the Court noted that, considering Section 11362.45(d), the drafters of Proposition 64 easily could have, but did not, use the phrase “laws prohibiting smoking or ingesting cannabis” in a correctional institution or “laws making it unlawful to smoke or ingest cannabis” in a correctional institution. The Court noted that the three preceding subdivisions (i.e. subdivisions (a), (b), and (c)) of Section 11362.45 did in fact identify carve outs for laws “prohibiting” or “making unlawful” certain conduct.

The Fourth District found that because the phrase “pertaining to” means a relation to something, laws prohibiting the possession of cannabis are within the scope of the statutory carve out for laws “pertaining to smoking or ingesting cannabis” in a correctional institution. (Section 11362.45(d).) The Court added that it “would be hard pressed to conclude that possession of cannabis is unrelated to smoking or ingesting the substance.” (Perry, supra, 32 Cal.App.5th at p. 891.)

The Court therefore concluded that the crime of possessing unauthorized cannabis in prison in violation of Penal Code section 4573.8 was not affected by Proposition 64. Accordingly, the Fourth District affirmed the trial court’s order denying Whalum’s petition.

IMMIGRATION

Immigration advisement that conviction “may have” deportation consequences is not adequate for defendants charged with serious controlled substance offenses; defendants must be advised they “will” be deported.

People v. Ruiz, 49 Cal. App. 5th 1061 (2nd Dist. 2020)

Facts: In 1991, police were notified by an informant that drug sales were occurring at the home of Josefina Ruiz. Police searched her home, and found 19 grams of cocaine and approximately $4,100 in a duffle bag in Ruiz’s bedroom. Ruiz was arrested. She entered into a negotiated plea agreement and pled no contest to possession for sale of cocaine base. She initialed an advisement in the written plea agreement stating, “I understand that if I am not a citizen of the United States, the conviction for the offense charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (Italics added.)

Ruiz filed a motion to vacate her conviction and set a hearing date in January 2017 (“2017 motion”). The 2017 motion was entitled “Notice of Motion and Motion to Reopen Case and Vacate Conviction; Memorandum of Points and Authorities [Pursuant to Cal. Penal Code §[§] 1016.5 and 1473.7].” The 2017 motion argued that her “conviction should be vacated because the court did not ensure that [she] was adequately warned before pleading guilty to a conviction that may result in deportation.” (Italics added.) The trial court denied the 2017 motion because the record showed that she was advised her conviction “may have” negative immigration consequences.

In 2019, Ruiz filed a “Notice of Motion and Motion to Vacate Conviction Pursuant to [Penal Code] Section 1473.7.” (“2019 motion”) She claimed she “was not advised by her attorney that, because of her plea in this case, she would be rendered permanently ineligible to ever become a legal resident of the United States.” Ruiz claimed her attorney did not defend her against the “immigration consequences that she now faces,” including removal proceedings. Her prior counsel brought a motion to vacate in 2017, pursuant to the general advisement standard of Section 1016.5, which did not involve the mandatory immigration consequences she faced (at the time of the instant case) for her controlled substance conviction.

The trial court ruled that it lacked jurisdiction to consider Ruiz’s 2019 motion, and denied the motion. The trial court found the 2019 motion was an untimely “motion for reconsideration” of the 2017 motion. Ruiz appealed the order denying her 2019 motion to vacate her 1991 conviction.

Held: On appeal, Ruiz argued that she did not receive an adequate advisement about the immigration consequences of her plea. The California Second District Court of Appeal noted that under Section 1016.5(a), defendants must be advised: “If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (Italics added.)

However, the California Supreme Court had held that the words “may have” in a Section 1016.5 immigration advisement are not an adequate immigration advisement for defendants charged with serious controlled substance offenses. (People v. Patterson (2017) 2 Cal.5th 885, 889, 895.) Under Patterson, such defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction. (Ibid.)

In 1991, when Ruiz pled no contest to her offense, the plea form contained the immigration advisement which incorporated the “may have” phrasing, rather than the mandatory consequences denoted by the “will be” language described by Patterson. The Second District thus found the advisement inadequate.

The Court noted that Section 1473.7 was enacted in 2017. It authorized a defendant to “prosecute a motion to vacate a conviction” that is “legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea.” (Former Section 1473.7(a)(1).) The law was amended, effective January 2019, which permitted the trial court to set aside a conviction based on counsel’s immigration advisement errors without a “‘finding of ineffective assistance of counsel.’” (People v. Camacho (2019) 32 Cal.App.5th 998, 1006.)

The Court of Appeal concluded that Ruiz’s motion under the 2019 version of Section 1473.7 was not barred by collateral estoppel, despite her 2017 motion to vacate. The Second District stated that the 2019 law provided a different standard for challenging and prevailing based on immigration advisement errors. The new law gave her an expanded right to show that her first counsel erred in the 1991 advisement and that her second counsel erred in basing the 2017 motion on the inapplicable general immigration advisement standard in Penal Code section 1016.5, regardless of whether either counsel provided ineffective assistance.

The Second District Court of Appeal accordingly reversed and remanded to the trial court with instructions to hear and consider Ruiz’s motion to vacate her prior conviction on its merits. A dissenting judge questioned the majority’s application of Patterson, stating that Patterson did not “even mention retroactivity…[but instead] declares a new procedural rule and I would not apply it retroactively.”

MISCELLANEOUS

1. Laboratory’s affidavit stating that there was no record of officer’s qualification to administer test was not sufficient to show that officer was not qualified to administer the test.

Delgado v. Dep’t of Motor Vehicles, 2020 Cal. App. LEXIS 531 (1st Dist. May 20, 2020)

Facts: In October 2016, Concord Police Department Police Officer Daniel Walker responded to a report of a hit-and-run collision at 2:15 a.m. At the scene, he was informed that a vehicle involved in the collision had been driven to a loading dock area. When he found the vehicle, Dallana Delgado was standing by the driver’s door. She acknowledged that she had been driving the car during the collision, that she had been drinking, and that she still felt affected by the alcohol. Delgado showed signs of intoxication. Her field sobriety tests were consistent with intoxication. Delgado later admitted that after driving a vehicle from the bar where she had been drinking with a companion, she failed to see a red light and got into the reported collision.

After Officer Walker arrested Delgado, he administered two breath tests for alcohol on a Draeger machine. Both showed a blood-alcohol level of 0.15 percent, nearly twice the legal limit. In his statement, Officer Walker certified under penalty of perjury that he was “qualified to operate this equipment and that the test was administered pursuant to the requirements of Title 17 of the California Code of Regulations.” Walker signed a checklist setting out instructions for carrying out the test on the particular Draeger machine.

The Department of Motor Vehicles (“DMV”) held a hearing on whether Delgado’s driving privileges should be suspended, although Officer Walker was not present. Delgado subpoenaed records from the Contra Costa County Criminalistics Laboratory (“Laboratory”) seeking, among other things, “a copy of the certificate of training or authorization evidencing the qualification of [Officer Walker] as operator of the AlcoTest 7110 breath testing machine.” The custodian of records for the Laboratory responded, “[W]e found no training record for Officer Daniel Walker.” The Laboratory’s response was admitted into evidence at the administrative hearing.

The hearing officer suspended Dallana Delgado’s driver’s license for four months for driving with a blood-alcohol level of 0.08 percent or more. The officer found that the Laboratory’s affidavit did not show Officer Walker was not trained to operate the alcohol test equipment, and that Delgado had failed to rebut the presumption that Officer Walker carried out his official duty properly.

Delgado petitioned a trial court for a writ of mandate, contending she had presented evidence showing the police officer who administered the chemical test was not properly trained in using the test equipment. The trial court granted the writ, concluding Delgado’s evidence rebutted the presumption that the test was performed properly. The DMV moved for reconsideration, submitting evidence that Walker had been trained on a Draeger machine—albeit with a different model number—in another county where he had previously worked. The trial court denied the motion for reconsideration. The DMV appealed.

Held: The California First District Court of Appeal explained that Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms are obtained by following the proper regulations and guidelines, and the test results are presumptively valid. (Manriquez v. Gourley (4th Dist. 2003) 105 Cal.App.4th 1227, 1232.) Thus, “the officer’s sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test.” (Id. at p. 1233.) The Court explained the question here was whether the trial court properly found the Laboratory’s affidavit sufficient to show that Officer Walker was not qualified to administer the test.

The Court of Appeal concluded that substantial evidence did not support the trial court’s finding that Officer Walker was not properly trained in using the test equipment. The Laboratory’s affidavit demonstrated only that it did not have a record of Officer Walker’s training. Neither Delgado’s evidentiary showing nor the applicable regulations indicated that if Officer Walker had been trained in the testing device at any point in his career, the Contra Costa County Criminalistics Laboratory – rather than another laboratory – would have had a record of it. The Court explained, “With nothing to fill that evidentiary gap, there was no reasonable basis for an inference that the procedures were not properly followed.” Accordingly, the First District Court of Appeal reversed.

1. Denial of access to online information necessary for physical patronage was a sufficient nexus to establish Americans with Disabilities Act violation.

Martinez v. San Diego Cnty. Credit Union, 2020 Cal. App. LEXIS 563 (4th Dist. June 19, 2020)

Facts: Abelardo Martinez is permanently blind and requires screen reading software to vocalize visual information on the computer screen, allowing him to “read” website content and access the Internet. In July 2017, Martinez filed a complaint against San Diego County Credit Union (“Credit Union”), alleging its website was incompatible with his screen reading software which was “the only method by which a blind person may independently access the internet.” He alleged this website defect denied him equal access to, and full enjoyment of, the Credit Union’s website and its physical locations. Martinez asserted a single cause of action under the Unruh Civil Rights Act based on two alternate theories: (1) Credit Union’s website violated the American Disabilities Act (42 U.S.C., section 12101 et seq.; “ADA”); and (2) Credit Union’s actions constituted intentional discrimination prohibited by the Unruh Civil Rights Act (California Civil Code section 51 et seq.).

On the day scheduled for jury selection, the trial court issued an order entitled “Sua Sponte Order Granting Motion for Nonsuit,” based on its understanding Martinez was intending to pursue only the ADA theory, and the trial court’s finding that Martinez had not sufficiently alleged that Credit Union’s website constituted a “public accommodation” within the meaning of the ADA. (42 U.S.C. section 12182(a).) Martinez appealed.

Held: The California Fourth District Court of Appeal explained that although the trial court characterized its ruling as a nonsuit, the parties and the Fourth District agreed that the trial court’s order reflected a determination on the sufficiency of Martinez’s pleading.

The Court explained that California’s Unruh Civil Rights Act provides: “All persons within the jurisdiction of this state are free and equal, and no matter what their . . . disability . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civil Code section 51(b).) A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a violation of the ADA; or (2) denial of access to a business establishment based on intentional discrimination.

With regard to the first theory, the Court explained that Title III of the ADA prohibits discrimination against disabled individuals by private entities, such as Credit Union. Title III provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. section 12182(a), italics added.) To establish a violation, a plaintiff must show: (1) a covered disability; (2) “the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of [the] disability.” (Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730, italics added.) The Court determined the first two elements of an ADA violation were established. The Court then focused on whether the Credit Union’s website qualified as a place of public accommodation because Martinez alleged he was discriminated against based on barriers on the website.

The Court observed that the ADA defines the phrase “place of public accommodation” by enumerating 12 categories of covered “places” and “establishments,” but a website is not identified in any of the statutory categories of the law (the ADA was enacted in 1990). While the regulatory agency charged with implementing the ADA (the Department of Justice (“DOJ”)) previously endorsed the applicability of Title III to “‘Web sites of public accommodations,’“ the DOJ had not provided specific regulatory guidance. (Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 903, 906-907, 910.)

The Fourth District noted the view of some federal courts[16] that a website can be important to providing access to a defendant’s public accommodation (physical premises) and to a disabled person’s ability to use and enjoy services provided at those places. Most of the federal circuits and one California Court of Appeal had held that a disabled plaintiff could state a viable ADA claim for alleged unequal access to a private entity’s website if there was a sufficient nexus between the claimed barriers and the plaintiff’s ability to use or enjoy the goods and services offered at the defendant’s physical facilities.

The Fourth District agreed with each of the courts specifically addressing the issue that the nexus test governs if the ADA is construed to define a public accommodation to include only a physical place. (See, e.g., Robles, at pp. 904-906; Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 642-644.) “‘“The statute applies to the services of a place of public accommodation, not services in a place of public accommodation.”‘” (Thurston, at p. 642, quoting Robles, at p. 905.)

The Fourth District determined Martinez’s allegations were sufficient to bring his case within the nexus standard. The Court observed that Martinez alleged the manner in which the Credit Union’s website was formatted precluded him from using his screen reading software to allow him to read the website’s content. He alleged this defect precluded him from determining what was on the website, looking for the Credit Union locations, “check[ing] out” the services, and determining which location to visit. He alleged that he could not “effectively browse for Defendant’s locations, products and services online.” He claimed that if the website were accessible, he could “independently investigate services and products, and find the locations to visit via Defendant’s website as sighted individuals can and do.”

The Court determined that these allegations demonstrated the requisite nexus between the website and Credit Union’s physical locations. The Fourth District thus concluded that the trial court erred in dismissing plaintiff’s action at the pleadings stage based on the ADA’s public-accommodation element. Accordingly, the Fourth District Court of Appeal reversed.

[1] The Second District stated that Heck v. Humphrey (1994) 512 U.S. 477, cited in Yount, did not govern in the instant case. Heck held that state prisoners may not challenge the constitutionality of their convictions in suits under 42 U.S.C. section 1983 unless the conviction has been invalidated. The Second District explained that the case here did not involve federal statutes or issues of federalism significant in Heck, but rather a state court’s order about state law claims.

[2] People v. Woods, 21 Cal.4th 668, 674 (1999).

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

[4] The Second District described this assertion as “factually unsupported.”

[5] Herring v. United States, 555 U.S. 135, 145 (2009), italics added, quoting United States v. Leon, 468 U.S. 897, 922 (1984), fn. 23.

[6] Katz v. United States, 389 U.S. 347, 357 (1967).

[7] Because the Ninth Circuit held the inventory search was proper, the Court did not address the Government’s alternative arguments that (1) the police were entitled to search the glove compartment because of the passenger’s parole search condition, or (2) the evidence would have been inevitably discovered.

[8] See Burrage v. United States, 571 U. S. 204, 211-212 (2014).

[9] Webster’s New International Dictionary 745 (2d ed. 1954).

[10] See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986 (1988).

[11] Webster’s New International Dictionary, supra, at 1267.

[12] See Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998); and Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), respectively.

[13] Justice Kavanaugh did not separately analyze discrimination on the basis of gender identity, claiming that his analysis of discrimination on the basis of sexual orientation would apply similarly to discrimination on the basis of gender identity.

[14] Scalia & Garner, Reading Law: The Interpretation of Legal Texts (2012) p. 226, fn. omitted.

[15] People v. Raybon, 250 Cal. Rptr. 3d 721 (Cal. 2019) (Review granted Aug. 21, 2019).

[16] See, e.g., Carroll v. FedFinancial Federal Credit Union, 324 F.Supp.3d 658. (E.D.Va. 2018).