Courtesy of James R. Touchstone, Esq.
A. Warrantless placement of a GPS tracker on a parolee’s car was permissible in light of United States v. Johnson.
United States v. Korte, 2019 U.S. App. LEXIS 7672 (9th Cir. Mar. 15, 2019)
Facts: Defendant Kyle Korte was paroled in August 2016 after having served time in state prison for bank robbery. As a parolee in California, Korte was “subject to search or seizure . . . at any time of the day or night, with or without a search warrant or with or without cause” under Penal Code section 3067(b)(3). In October 2016, Korte acknowledged his parole conditions, including that he was now subject to searches of “[y]ou, your residence, and any property under your control.”
Also in October 2016, the Los Angeles Sheriff’s Department (“LASD”) began investigating a series of bank robberies. From robbery surveillance video, LASD came to suspect Korte as the masked robber involved in some of the robberies. In November 2016, without a warrant or Korte’s consent, LASD placed a Global Positioning System (“GPS”) tracker on Korte’s car and tracked the car’s movements over a six-day period. At about that time, the Government also obtained a court order under the Stored Communications Act (“SCA”) to acquire Korte’s cell site location information (“CSLI”). An officer saw Korte, after seeming to surveil a bank, open his trunk and place something inside. Soon after, officers arrested Korte and searched the car, including the trunk. They found a toy gun used during the armed robberies.
A grand jury indicted Korte for attempted bank robbery and three counts of bank robbery. Korte pleaded not guilty and moved to suppress (1) the evidence found in his car’s trunk, (2) the information derived from the GPS tracker on his car, and (3) his CSLI. Denying all three suppression motions, District Court reasoned that Korte’s parole status permitted the warrantless search of the trunk and placement of the GPS tracker on his car. The District Court also determined that even if the acquisition of CSLI information violated Korte’s Fourth Amendment rights, the good-faith exception clearly applied based on the case law at that time. The jury returned a guilty verdict as to all four counts and Korte was sentenced to 210 months in prison. Korte appealed, challenging the denial of his suppression motions before trial.
Held: The Ninth Circuit Court of Appeals affirmed the District Court’s denial of Korte’s motions to suppress. The Court of Appeals held that the warrantless placement of a GPS tracker on the parolee’s car did not violate the Fourth Amendment. While acknowledging the general rule expressed by the United States Supreme Court in United States v. Jones, that installing a GPS tracker on a car constitutes a search typically requiring a warrant, the Ninth Circuit followed precedent distinguishing Fourth Amendment rights in the parolee context in reaching its decision.
The Ninth Circuit Court of Appeals explained that a search of a parolee that complies with the terms of a valid search condition will “usually be deemed reasonable under the Fourth Amendment.” United States v. Cervantes, 859 F.3d 1175, 1183 (9th Cir. 2017). Under California Penal Code section 3067(b)(3), every parolee “is subject to search or seizure . . . at any time of the day or night, with or without a search warrant or with or without cause.” In Samson v. California, the United States Supreme Court upheld California’s Section 3067(b)(3) because parolees “have severely diminished expectations of privacy by virtue of their status alone” — even less than probationers — and because “[t]he State’s interests” in supervising parolees and reducing recidivism “are substantial.”
The Court of Appeals accepted that Jones held thattypically installing a GPS tracker on a car requires a warrant. And the United States Supreme Court held in Riley v. California that the warrantless search of an arrestee’s cell phone was unlawful, emphasizing the significant privacy intrusion that arose when searching a person’s cell phone. However, the Ninth Circuit explained that its prior decision in United States v. Johnson, 875 F.3d 1265 (9th Cir. 2017), “instructs us not to necessarily apply a newly established Fourth Amendment protection to parolees.” Johnson held that Riley did not apply to parolees because “the balance of privacy interests and factual circumstances in this context are different.”
Regarding CSLI, the Ninth Circuit observed that the United States Supreme Court had not yet issued its decision in Carpenter v. United States when the District Court considered Korte’s motion to dismiss. Carpenter held that the Government must obtain a warrant to access a person’s CSLI from a wireless carrier; a court order was no longer acceptable to authorize CSLI acquisition.
The car trunk search was also deemed valid because Korte’s uncontested control over the car was sufficient to permit a warrantless parole search of the trunk. Finding all three searches valid, the Ninth Circuit Court of Appeals accordingly affirmed.
For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 10, available at www.jones-mayer.com.
B. Miranda not required when defendant confessed to killing his infant to the mother in an interview orchestrated by police because mother was acting as an agent of the police and defendant was unaware.
People v. Orozco, 32 Cal. App. 5th 802 (2nd Dist. 2019)
Facts: While watching his six-month-old daughter by himself one evening, Edward Orozco struck her so hard that he killed her. The child’s mother, Nathaly Martinez, said her daughter was playing with toys and looking “fine” a few hours earlier before leaving her daughter with Orozco, Martinez’s boyfriend. Orozco voluntarily went to the police station and met with officers in an interview room. During that meeting, officers told Orozco he was not in custody and free to leave. Nevertheless, officers read him hit Miranda rights, which Orozco said he understood. Orozco gave an innocent explanation for the baby’s death. When officers expressed skepticism, and asked him to take a polygraph, Orozco asked for an attorney. During the rest of the meeting with the officers, Orozco repeatedly asked for an attorney. The interview ended without Orozco making any incriminating statements. Hours after the first interview, the police orchestrated a meeting between Orozco and Martinez in an interview room at the police station. The police did not give Martinez specific questions to ask or describe the particular information to get from Orozco. During the course of this second meeting, Orozco confessed to Martinez that he killed their child.
Orozco was charged with murder and assault on a child causing death. Orozco filed a written motion to exclude his confession as obtained in violation of Miranda. The People filed a cross-motion to admit the confession. The trial court admitted Orozco’s confession at trial, concluding that his prior invocations of his Miranda right to counsel did not mandate suppression because Orozco was unaware that Martinez was a police agent when he confessed later during the second meeting. The jury convicted Orozco of second-degree murder and assault on a child causing death. Orozco appealed.
Held: The California Second District Court of Appeal affirmed. The Court first discussed the Miranda advisements, including the right to an attorney, that must be read to a suspect as a prerequisite to admitting any of the suspect’s statements, including potentially incriminating ones. If such a suspect does not invoke either his right to remain silent or right to an attorney prior to making such statements, then his statements may be admitted. However, the Court explained that Miranda’s rule has a critical limitation – it only applies when the suspect-defendant was the subject of “custodial interrogation.”
Although the Court acknowledged that Edwards v. Arizona (1981) 451 U.S. 477 held that a suspect’s invocation of his Miranda right to counsel precludes “further police-initiated custodial interrogation” unless and until counsel is present or the suspect “initiates further communication” with the police, the Second District held that Illinois v. Perkins (1990) 496 U.S. 292 controlled instead. Perkins held that “Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.”
The Court explained that for Miranda purposes, “interrogation” means “‘express questioning’ or ‘words or actions on the part of the police … that the police should know are reasonably likely to elicit an incriminating response.’” Although the police orchestrated Orozco’s meeting with his girlfriend Martinez, they were alone when he confessed and he did not know she was an agent of the police at that point. Citing a host of cases, the Court explained: “there is no ‘interrogation’ when a suspect speaks with someone he does not know is an agent of the police.” Moreover, Miranda was intended to dispel the compelling psychological pressures that are inherent in “in-custody interrogation,” but those pressures were “simply not implicated” when Orozco was not aware of any police involvement in eliciting or recording his statements when he spoke, freely, with his girlfriend Martinez.
The Court also held that Orozco’s confession to a Martinez was not the suppressible fruit of an earlier Miranda violation (i.e. when the police questioned Orozco after he repeatedly requested an attorney) because the violation did not actually produce any confession at the end of the first meeting. Instead, Orozco did not waver in expressing his innocence to the police. Orozco’s statements to Martinez were voluntary because he said them thinking he was having a private conversation with his girlfriend. He was unaware he was speaking to Martinez as an agent of police. The Court further determined there was no independent due process violation in the police actions.
Applying Perkins and finding no other violation, the Second District concluded that Orozco’s statements were admissible and affirmed the trial court’s ruling admitting his confession.
C. Where a magistrate judge erroneously grants a search warrant without supporting probable cause, but police have no reason to question the magistrate’s decision, the exclusionary rule will not apply.
United States v. Elmore, 2019 U.S. App. LEXIS 6507 (9th Cir. Mar. 4, 2019)
Facts: Calvin Sneed and his minor girlfriend, L.G., had met in Los Angeles. L.G. was staying with her brother Antonio Gilton (“Gilton”) in Los Angeles after leaving San Francisco. After she had discovered that Sneed had been pimping young women in Los Angeles, L.G. began advertising herself on prostitution websites. L.G.’s mother travelled from San Francisco to Los Angeles to convince L.G. to return to San Francisco, but L.G. did not return with her mother. However, three days later in early June 2012, Sneed and L.G. left Los Angeles and Sneed dropped L.G. off at her parents’ house in San Francisco. After a brief stay, L.G. texted Sneed after midnight to come pick her up. L.G. was waiting outside her parents’ home shortly before 2 a.m. when she saw Sneed drive past where she was standing and turn the corner. She then saw an SUV accelerate towards Sneed’s vehicle. L.G. heard gunshots and saw a muzzle flash coming from the SUV. L.G. then heard a crash and ran to Sneed’s car, where she found him dead of a gunshot wound. With L.G.’s cooperation, San Francisco police searched her cell phone confirming numbers for her father, her mother, her brother Antonio, and another brother. Police later received confidential information implicating L.G.’s father, Barry Gilton and a second, unidentified person in the murder.
Two days after the murder, San Francisco police submitted a fourteen-page affidavit in support of a state search warrant seeking CSLI data for two cell phone numbers, a phone associated with an unknown individual and the phone associated with Gilton. The affidavit detailed, among other things, what the police knew about the crime; Sneed’s relationship with L.G.; information learned from the confidential informant; how L.G. was related to Gilton; that L.G. had been staying with Gilton in Los Angeles (where she met Sneed and began engaging in prostitution); that Gilton’s phone number was in L.G.’s cell phone; and that the murder was likely committed by a family member or members. That same day, a San Francisco County superior court judge
issued a warrant authorizing the seizure of Gilton’s historical CSLI information, along with other cell phone data.
Gilton was charged with four counts of murder. He moved to suppress the CSLI, arguing that the warrant issued without probable cause and that the officers’ reliance on the warrant was not in good faith. The District Court granted Gilton’s motion, concluding that the warrant was so deficient in indicia of probable cause that no officer could have relied on the warrant in good faith. The government appealed.
Held: The Ninth Circuit Court of Appeals held that although the warrant authorizing the seizure of the CSLI information was not supported by probable cause, the deficiencies in probable cause were not so stark as to render the officers’ good faith reliance on the warrant entirely unreasonable.
Beginning with the probable cause determination, the Court noted that the fourteen-page affidavit in support of the warrant mentioned Gilton only three times. The Court determined that these “scant and innocuous” references to Gilton did not establish a fair probability that evidence of the crime would be foundin Gilton’s location data. An association “through family . . . affiliation” is insufficient to establish probable cause. United States v. Grant, 682 F.3d 827, 836-37 (9th Cir. 2012), and this is all the Gilton references established. The Court found no basis in the affidavit to support the inference that Gilton was upset with Sneed, that he had motive to commit the crime, and that he was in the San Francisco area on the night of the murder. Consequently, the Court agreed with the District Court that the affidavit’s few references to Gilton were insufficient to support a reasonable inferencethat evidence of a crime would be found in Gilton’s CSLI data.
Having determined that SFPD’s search of his CSLI data violated Gilton’s Fourth Amendment rights, the Court turned to whether applying the exclusionary rule was an appropriate remedy.
The Court of Appeals explained that application of the exclusionary rule is answered by weighing “[t]he substantial social costs exacted by the exclusionary rule” with the benefit of increased deterrence of police misconduct. United States v. Leon, 468 U.S. 897, 906-07 (1984) “If . . . the exclusionary rule does not result in appreciable deterrence” of police misconduct, “then, clearly, its use in the instant situation is unwarranted.” United States v. Janis, 428 U.S. 433, 454 (1976). To have any appreciable deterrent benefit, the exclusion of evidence “must alter the behavior of individual law enforcement officers or the policies of their departments.” Leon, 468 U.S. at 918. Moreover, “[t]he deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at thevery least negligent, conduct which has deprived the defendant of some right,” and that “[w]here the official action was pursued in complete good faith . . . the deterrence rationale loses much of its force.” (Leon. at 919, citation omitted.) In such cases, “excluding the evidence will not further the ends of the exclusionary rule in any appreciable way.” Id. at 920 (quoting Stone, 428 U.S. at 539-40).
Here, the Ninth Circuit explained, the only question to address was whether Officer Watts’s affidavit was “so lacking in indicia of probable cause” that no reasonable officer would believe that probable cause existed to search Gilton’s CSLI data. In light of the prevailing belief in 2012 that CSLI data was not protected by the Fourth Amendment, the Court concluded that there was no “willful” or “grossly negligent” error here where the officers actually took the precautionary step of seeking a warrant and provided plenty of factual background by which the magistrate could reach his own determination of the existence of probable cause. Thus, the Court found that the police here were not required to doubt the determination of a neutral and detached magistrate. The Court concluded therefore that applying the exclusionary rule to Gilton’s CSLI information would not produce any “appreciable deterrent” effect, and so exclusionary rule application was unwarranted.
Accordingly, the Ninth Circuit reversed.
D. Miranda violation where police assure suspect they won’t question about crime, but ask inculpatory questions; harmless error where other evidence showed ‘ample support’ for conviction.
People v. Anthony, 32 Cal. App. 5th 1102 (1st Dist. 2019)
Facts: On May 16, 2009, Charles Davis was walking down a Berkeley street when a masked man exited a gold Cadillac that contained three other men and shot Davis 17 times and killed him. The killer returned to the car as his associates visibly celebrated. As they drove away, police quickly spotted them and pursued in a high-speed chase that ultimately ended in two collisions which killed another car’s driver and a pedestrian. Police arrested two people at the scene of the crashes, including defendant Stephon Anthony. The other two fled, but were arrested at later dates.
On May 17, the day after the shooting, Berkeley police advised Anthony of his Miranda rights, and Anthony requested an attorney and said he had nothing further to say. Police ended the interview at that point. Notified by Berkeley police that Anthony wanted to talk to them, Oakland police picked up Anthony on May 18 for questioning in an Oakland Police Department interview room. Oakland Police Department Sergeant Sean Fleming and his partner, Sergeant Jones, conducted this interview. Sergeant Fleming was familiar with Anthony, having interviewed him on April 23, 2009 about the murder of Anthony’s friend and attempted murder on Anthony himself earlier that same day. On that day, Sergeant Fleming, the lead investigator in the April murder and attempted murder investigations, did not advise Anthony of his Miranda rights because, as he later testified, Anthony was only a victim and witness to that day’s shooting.
Fleming testified that, at the time of the May 18 interview, he was aware Anthony was a suspect in a Berkeley murder case that was possibly gang-related, and that he had thought that the April murder “possibly was related to a gang-related shooting.” Officer Fleming did not advise Anthony of his Miranda rights during the May 18 interview. Fleming told Anthony that they did not want to, and would not, discuss the Berkeley case. After Anthony agreed that he had asked for a lawyer during Berkeley police questioning the day before for the Berkeley shooting, Sergeant Jones said” “So when you do that other cops can’t come in and try to talk to you about the s—. That’s in the Constitution,” and then reiterated that he and Fleming were talking with him only about the April murder. The officers did not ask Anthony about the Berkeley case, but instead “talked to him about the murder of [Anthony’s friend], and he was a victim/witness for that.” However, the questions elicited incriminating statements from Anthony about the nature of the April shootings and their relation to the May 16 retaliatory acts. Anthony discussed how close he was to the April murder victim and acknowledged a rivalry between “Berkeley cats” and North Oakland that resulted in violent shootings. Anthony said, “I just know that them Berkeley n—– got a reputation for shootin’ at North Oakland n—– no matter who the f— it is.” Anthony also said during the course of the questioning that he wanted to be anonymous, and did not want to be recorded or for anything to be written down. Anthony’s May 18, 2009 interview with Officers Fleming and Jones was recorded, and the recording was played for the jury at trial.
The Alameda County District Attorney charged Anthony and the other defendants with five counts relating to the three deaths on May 16, 2009. Prior to trial, the court held a hearing on Anthony’s motion in limine that his statements on the three separate occasions to police were inadmissible on Miranda and othergrounds. The court denied the motion as to Anthony’s May 17 statements to Berkeley police, but ruled the April 23 and May 18, 2009 statements were admissible. Multiple civilian and police eyewitnesses testified during the course of the proceedings, included an eyewitness to the shooting. The jury found Anthony and the other defendants guilty of various murder counts, and were sentenced to life in prison without the possibility of parole. The defendants appealed.
Held: The California First District Court of Appeal addressed the defense contention that the trial court prejudicially violated Anthony’s constitutional rights under Miranda when it denied his motion in limine to exclude evidence of his statements to Oakland police on May 18, 2009, two days after his arrest for the Davis murder.
The People argued that that Anthony was not subjected to a coercive interrogation that required Miranda warnings. The Court, citing the People’s own explained that Miranda analysis under People v. Macklem investigates “whether the language summoning the defendant from his prison lodging was coercive, whether the physical surroundings of the questioning were unduly coercive, whether the defendant was confronted with evidence of guilt, and whether there was an opportunity given to this person to leave the site of thequestioning.”
Here, Anthony was removed to the Oakland police department from Berkeley police under a court order and left in an interview room wearing physical restraints for almost four and a half hours until Fleming and Jones began questioning him late in the evening of May 18; the two officers initiated and dictated the direction of their questioning; the officers began peppering Anthony with questions about the nature of his friendship with the April murder victim; his feelings about his friend’s death, and whether anything had occurred before the friend’s killing that might have caused his shooting, including, whether there were “issues” between some “cats” in Berkeley and “y’all.” The officers also ignored Anthony’s insistence during the interview that he did not want to be recorded. Also, Sergeant Fleming testified that Anthony was not free to leave. The Court found that substantial evidence supported the trial court’s factual finding that Anthony was subjected to a custodial interrogation.
However, the Court also held that the trial court’s error in admitting Anthony’s May 18 statements in violation of Miranda was harmless beyond a reasonable doubt because other evidence provided ample support for the convictions for the May 16 killings. As the Court explained, Anthony was on the scene for all of the May 16 incidents; the Cadillac used in Davis’ murder was registered in Anthony’s name; an Berkeley police officer who pursued the Cadillac identified Anthony as the driver; Anthony was apprehended at the crash site; his cell phone was found in the car; evidence showed that Anthony was one of the people celebrating in the Cadillac as Davis was repeatedly shot and was the driver who drove with conscious disregard for human life, killing the other two people. There was also abundant evidence for Anthony’s affiliation with a specific gang, known to engage in violence with the Berkeley gang that had Davis’ brother as a member. Lastly, Anthony’s April statements to Oakland police, which were not challenged on appeal, suggested a gang-related motive to participate in the murder of Davis; specifically, Anthony suspected the rival Berkeley gang that Davis’ brother was a part of was responsible for killing Anthony’s friend and attempting to kill Anthony and another associate.
Accordingly, the First District affirmed and remanded for reasons unrelated to the Miranda claim.
E. The exclusionary rule applies to suppress evidence seized in violation of Section 1302(a)(2) of the Indian Civil Rights Act of 1968, which parallels the Fourth Amendment.
United States v. Cooley, 2019 U.S. App. LEXIS 8344 (9th Cir. Mar. 21, 2019)
Facts: United States Route 212 passes through the Crow Indian Reservation in southern Montana. Crow Indian Reservation officer James D. Saylor, a highway safety officer for the Crow Police Department, pulled up behind a white truck parked on the shoulder of Route 212 within the reservation. He thought the driver might need assistance. The truck’s driver, Joshua James Cooley, lowered his window about six inches enabling Officer Saylor to see that Cooley had “watery, bloodshot eyes,” and “seemed to be non-native.” Cooley said everything was okay and that he was tired. Cooley had a child in the car, who came from the back to sit in Cooley’s lap. Officer Saylor noticed firearms on the front passenger seat, which Saylor later testified was not unusual in that region. He continued questioning Cooley, and asked for written identification. Cooley did not respond, and his breathing became shallow and rapid. Saylor unholstered his pistol to his side, and ordered Cooley to stop what he was doing and show his hands. Cooley complied. Cooley complied with Saylor’s repeated request to provide identification by producing his Wyoming driver’s license. Saylor noticed a loaded semiautomatic pistol in the area near Cooley’s right hand, seized it, and disarmed it. Saylor ordered Cooley out of the truck, and escorted Cooley and his child to Saylor’s patrol car. Cooley took out some bags that looked to Saylor like they contained methamphetamine. After putting Cooley in the back of his patrol car, Saylor searched, along with arriving Bureau of Indian Affairs officers, Cooley’s vehicle, finding a glass pipe and more methamphetamine.
Cooley was charged in the District of Montana with one count of possessionwith intent to distribute methamphetamine, and one count of possession of a firearm in furtherance of a drug trafficking crime. Cooley moved to suppress the drug-related evidence, arguing that Saylor was acting outside the scope of his jurisdiction as a Crow Tribe law enforcement officer when he seized Cooley, in violation of the Indian Civil Rights Act of 1968 (“ICRA”). The District Court granted Cooley’s motion, and the government appealed.
Held: The Ninth Circuit Court of Appeals held that the tribal Indian officer acted beyond his authority when, without first ascertaining whether the defendant was an Indian, he continued to detain the defendant and then searched his vehicle on a public, nontribal highway crossing a reservation. In reaching its decision, the Court explained that tribal authorities may stop those suspected of violating tribal law on public rights-of-way as long as the suspect’s Indian status is unknown. In such circumstances, tribal officials’ initial authority is limited to ascertaining whether the person is an Indian. Bressi v. Ford, 575 F.3d 891, 894, 896 (9th Cir. 2009). The detention for this purpose must be brief and limited, and typically resolved by asking one question. United States v. Patch, 114 F.3d 131, 134 (9th Cir. 1997). If, during this limited interaction, it is apparent that a state or federal law has been violated, the tribal officer may detain the non-Indian for a reasonable time in order to turn him or her over to state or federal authorities. Bressi, 575 F.3d at 896.
The Ninth Circuit explained that the District Court was correct in holding that the officer acted beyond his authority, but the District Court incorrectly based this conclusion on the officer’s presumption for jurisdictional purposes that Cooley “seemed to be non-Native” based on his physical appearance. The Court explained that Indian status was a political classification, not a racial or ethnic one. While a law enforcement officer may rely on a detainee’s response when asked about Indian status, Saylor posed no such question to Cooley. The Court found, pursuant to Bressi, that Saylor exceeded his authority as a tribal officer on a public, nontribal highway crossing a reservation when, without first ascertaining Cooley’s Indian status, Saylor detained him and searched his vehicle. The Court next turned to the question as to whether the District Court properly suppressed the drug evidence found during the searches.
The Court explained that the ICRA has a parallel provision to the Fourth Amendment, and held that the exclusionary rule applies in federal court prosecutions to evidence obtained in violation of the Indian Civil Rights Act’s Fourth Amendment counterpart.
The Ninth Circuit largely agreed with the District Court’s determination that Officer Saylor violated ICRA’s Fourth Amendment counterpart. The caveat was that the Ninth Circuit held that a tribal officer does not necessarily conduct an unreasonable search or seizure for ICRA purposes when he acts beyond his tribal jurisdiction, but that the tribal authority consideration is highly pertinent to determining whether a search or seizure of unreasonable under ICRA.
The Court explained that the divisions between tribal authority on the one hand, and federal and state authority on the other, have “deep roots that trace back to the nation’s founding.” The Court held that tribal officers’ extra-judicial actions do not violate the ICRA’s Fourth Amendment parallel only if, under the law of the founding era, a private citizen could lawfully take those actions. Under this standard, the Court concluded that the officer violated the ICRA’s Fourth Amendment parallel when he twice searched the defendant’s truck after seizing him because Saylor would not have had authority as a private citizen to seize, detain or search Cooley or his vehicle. Accordingly, the Court affirmed the District Court’s grant of the motion to suppress.
F. The Fourth and Fourteenth Amendments do not apply when there is a theft by city officers who execute a valid search warrant and have qualified immunity.
Jessop v. City of Fresno, 2019 U.S. App. LEXIS 8271 (9th Cir. Mar. 20, 2019)
Facts: City of Fresno (“City”) police officers Derik Kumagai, Curt Chastain, and Tomas Cantu (“City Officers”) were investigating illegal gambling machines in the area of Fresno, California. They executed a search warrant at three Fresno properties owned by Micah Jessop and Brittan Ashjian. The warrant authorized the seizure of monies, negotiable instruments, and other items in connection to illegal gambling or money laundering found on the premises, as well as monies and records derived from the sale or control of illegal gambling machines. If the City Officers found the property listed, they were “to retain it in [their] custody, subject to the order of the court as provided by law.”
After the search, the City Officers gave Jessop and Ashijan an inventory sheet stating they had seized approximately $50,000, but the two alleged that the officers actually seized cash and rare coinage at a combined value of $276,380, and that the officers stole the difference.
Jessop and Ashijan (“Appellants”) filed suit alleging, among other things, claims against the City Officers pursuant to 42 U.S.C. section 1983 for Fourth and Fourteenth Amendment violations. The City Officers moved for summary judgment on the basis of qualified immunity. The District Court granted the motion and dismissed all of Appellants’ claims. Appellants appealed.
Held: The Ninth Circuit Court of Appeals explained that to determine whether an officer is entitled to qualified immunity, it would consider “(1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014). The Court explained that courts now have the discretion to determine which element of qualified immunity should be analyzed first, and chose to examine the existence of “clearly established” law.
The Ninth Circuit explained that it had never before addressed whether the theft of property covered by the terms of a search warrant and seized pursuant to that warrant violates the Fourth Amendment. Nor was there any consensus among the five circuits that, at the time of the events in this case, had addressed that question, or the similar question of whether the government’s refusal to return lawfully seized property violates the Fourth Amendment; the circuits had reached different results. The Court determined that although the City Officers should have understood that the alleged theft of Appellants’ money and rare coins would be improper, they did not have clear notice that it violated the Fourth Amendment. The Ninth Circuit held that, without any binding authority or a “consensus of cases of persuasive authority” on the constitutional question, it was forced to conclude that the law was not clearly established at the time of the incident. A similar conclusion was required for Appellants’ Fourteenth Amendment substantive due process claim. There was no clearly established law that had held that officers violate the substantive due process clause of the Fourteenth Amendment when they steal property that is seized pursuant to a warrant. Therefore, City Officers were entitled to qualified immunity against the Fourteenth Amendment claim also.
The Ninth Circuit said it sympathized with Appellants since police sworn to uphold the law were the alleged perpetrators of the theft. However, “not all conduct that is improper or morally wrong violates the Constitution,” and there were probably other avenues to seek relief. However, because Appellants did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant, the City Officers were entitled to qualified immunity.
A. After PERB made finding that City violated Meyers-Milias-Brown Act by making policy decision without meeting and conferring with unions, its compensatory remedy effectively invalidated the initiative; thus, remedy modified.
Boling v. Pub. Emp’t Relations Bd., 2019 Cal. App. LEXIS 242 (4th Dist. Mar. 25, 2019)
Facts: In August 2018, the California Supreme Court upheld the finding of the Public Employment Relations Board (“PERB”) that the City of San Diego (“City”) had violated the Meyers-Milias-Brown Act (the “Act”) when the City’s mayor made a policy decision to promote a pension reform via a citizens’ initiative (the “Initiative”) without adhering to meet-and-confer requirements with the impacted employees’ unions. The Supreme Court then remanded to the Fourth District Court of California to address the judicial remedy for the violation.
When it determined that the City violated the Act, PERB imposed a compensatory remedy intended to restore the parties and affected employees to their respective bargaining positions before the failure to meet and confer occurred and to make affected employees financially whole. PERB ordered the City to “[m]ake current and former bargaining-union employees whole for the value of any and all lost compensation, including but not limited to pension benefits, offset by the value of new benefits required from the City under [the Initiative], plus interest at the rate of seven (7) percent per annum until [the Initiative] is no longer in effect or until the City and the Unions agree otherwise.” PERB also imposed cease-and-desist and affirmative action remedies to prevent further violations of the Act. PERB and the unions asked the Fourth District to affirm the administrative remedies, and further requested the Court invalidate the Initiative.
Held: The California Fourth District Court of Appeal first concluded that the question of the Initiative’s validity was more appropriately decided in a separate quo warranto proceeding because it was a novel question; because the validity might depend on whether the Act wholly or partially preempts citizens’ initiatives on matters within the Act’s scope of bargaining and PERB had not actually decide the complex question by time of the Court’s review; because there could be interested persons like the Attorney General and unrepresented employees subject to the Initiative not party to the Court’s review, and that those parties might wish to present evidence on the question; and because quo warranto was available as an alternate course.
The Court next held that PERB’s compensatory remedy essentially invalidated the Initiative by rendering the Initiative “perpetually ineffectual.” As the Court had determined that the Initiative’s validity was more suited for a quo warranto proceeding, the Initiative was, until such a proceeding, presumptively valid. Thus, any action by PERB assuming the contrary would encroach on constitutional, statutory, and additional policy matters. The Court observed that it had the power under the Act “to make and enter a decree enforcing, modifying, and enforcing as modified, or setting aside in whole or in part the decision or order of [PERB].” (Government Code section 3509.5 (b).) The Court accordingly chose to modify PERB’s compensatory remedy to order the City to meet and confer over the effects of the Initiative and to pay the affected current and former employees represented by the Unions the difference, plus 7 percent annual interest, between the compensation, including retirement benefits, the employees would have received before the Initiative became effective and the compensation the employees received after the Initiative became effective. The Court deemed this modification would serve PERB’s intended functions by combining employees’ lost compensation due to collective bargaining delays, yet encouraged the City to engage in the collective bargaining process. The Court also modified PERB’s cease-and-desist remedy such that the City was ordered to meet and confer with the Unions upon the Unions’ request before placing a charter amendment on the ballot that advanced by the City affecting employee pension benefits and/or other negotiable subjects. As so modified, the Fourth District affirmed PERB’s compensatory remedy decision.
B. California Supreme Court holds that opportunity to purchase airtime credit was not a right protected by the Contract Clause and therefore could be eliminated by the legislature.
Cal. Fire Local 2881 v. Cal. Pub. Employees’ Ret. Sys., 6 Cal. 5th 965 (2019)
Facts: As outlined in our March 2017 and January 2018 Client Alerts, this case involved a challenge to the constitutionality of the California Public Employees’ Pension Reform Act of 2013’s (PEPRA) elimination of the opportunity for public employees to purchase additional retirement service (ARS) credit, also known as “air time” credit. From 2003 until the end of 2012, State employees and other CalPERS members with at least five years of public employment were granted the opportunity to, at any time prior to his or her retirement, make a one-time election to purchase from one to five years of ARS credit. To acquire ARS credit, the member was required to pay CalPERS an amount equal to the increase in employer liability, to the extent the increase could be estimated from circumstances prevailing at the time the employee exercised the opportunity to purchase the ARS credit. ARS credit gave public employees the ability to acquire “nonqualified” service credit, meaning service credit that did not reflect any type of service. Therefore, public employees that exercised the option to purchase the ARS credit were able to receive pension benefits calculated on the basis of up to five years more public employment than they actually worked. PEPRA eliminated the purchase of ARS credit by public employees after December 31, 2012.
Plaintiffs, which included Cal Fire Local 2881, a labor association whose members are employees of the California Department of Forestry and Fire Protection (“Cal Fire”), and four individual Cal Fire employees, challenged the elimination of ARS credit, arguing that the opportunity to purchase ARS credit was a vested right protected by the contract clause of the California Constitution. The trial court ruled that the opportunity to purchase ARS credit was not protected by the Constitution and, even if it were, elimination of the opportunity was a permissible modification to the pension plan because it was “materially related to the theory and successful operation of a pension system.” The Court of Appeal affirmed, concluding that the opportunity to purchase ARS credit was not constitutionally protected given the absence of any indication of legislative intent to create a contractual right. It also held that, even if it was constitutionally protected, it was properly eliminated. The California Supreme Court granted review.
Held: The California Supreme Court affirmed the lower courts’ determinations that the opportunity to purchase ARS was not a benefit of employment protected by the constitutional contract clause. Therefore, the Court held, the opportunity to purchase ARS credit could be altered or eliminated at the discretion of the Legislature. Because the Court concluded there was no constitutional protection of the opportunity to purchase ARS credit, it did not address whether the elimination of the opportunity to purchase ARS credit was an unconstitutional impairment of public employees’ vested rights.
In reaching its decision, the Supreme Court explained that contract clause protection of the terms and conditions of public employment has historically been the exception, rather than the rule. The Court explained that terms and conditions of public employment are generally established by statute or other similar legislative enactment rather than by contract and, therefore, public employees have generally been held to possess no constitutionally protected rights in the terms and conditions of their employment. Accordingly, the terms and conditions of public employment are generally subject to repeal or revision at the discretion of the legislative body.
The Court explained there are two exceptions to this general rule: (1) contract clause protection applies to statutory terms and conditions of employment when the statute or ordinance establishing the benefit and circumstances of its enactment “clearly evince a legislative intent to create contractual rights,” and (2) protection of certain benefits of public employment by implication.
Looking at the first exception, the Court concluded there was no indication that the Legislature intended to create a contractual right to purchase ARS credit. Plaintiffs argued there was a vested right in the opportunity to purchase ARS credit, and characterized previous case law as finding a contractual right if the “benefits were promised when employees provided service.” Plaintiffs argued that the language in the statute that stated a member could elect to receive the additional ARS credit at any time prior to retirement by making the required contributions manifested legislative intent to permit existing employees to exercise the opportunity to purchase ARS credit at any point prior to their retirement by (1) working for the five-year period and (2) making the required payments to CalPERS.
The Court rejected Plaintiffs’ argument. It explained that the language, read in the context of the remainder of the statute, simply established that the one-time election to purchase ARS credit could be made at any point during the employee’s career, and that the election to purchase ARS credit was not complete until the required payments to the pension system had been made. Based on this reading, the Court found the language of the statute did not “clearly evince a legislative intent to create private rights of a contractual nature.” The Court also noted that Plaintiffs pointed to no text, legislative history, or other evidence suggesting that the Legislature intended to make ARS credit an irrevocable feature of employment of then-existing public employees.
The Court then turned to the second exception and concluded there were no implied contractual rights. The Court explained that the Constitution protects an implied contractual right for public employees to receive statutory pension benefits because such benefits constitute deferred compensation. However, the Court determined that the opportunity to purchase ARS credit was not a form of deferred compensation. The Court explained that pension benefits flow directly from a public employee’s service, and the magnitude of such benefits are proportionate to the time of that service. The Court distinguished the opportunity to purchase ARS credit. It noted that ARS credit was available at the option of each individual employee, and that it expired upon an employee’s retirement if not taken advantage of. It also noted the amount of service was not relevant to the exercise of the opportunity, and that service beyond the five-year period required to be eligible did not increase or otherwise affect the opportunity to purchase ARS credit. Unlike pension benefits, “in which a critical determinant is an employee’s term of public employment,” the factor that determined the benefit received was the number of years of ARS credit the employee purchased. The Court also noted that the opportunity to purchase ARS credit was not different in form than a variety of other optional benefits offered to public employees, such as the option to purchase different types of health insurance. The Court observed that it had never suggested that this type of benefit is entitled to contract clause protection. The Court further determined there was no other basis for finding implied contract clause protection.
Citing its precedent, the Court also explained that while the purchase of ARS credit increased the amount of a pension benefit, it did not affect the amount of the pension that represented deferred compensation. It was not compensation for public employment. The increase in pension benefits was a return of the funds used to make the purchase.
Finally, the Court indicated that its determination that the opportunity to purchase ARS credit is not a vested right precluded a re-examination of the “California Rule.”
For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 8, available at www.jones-mayer.com
C. Requirement that an officer be assigned to patrol division to receive master police officer-terrorism pay compels the conclusion that MPO pay is not attached to the officer’s rank; thus, trial court erred.
Retired Oakland Police Officers Ass’n v. Oakland Police & Fire Ret. Sys., 33 Cal. App. 5th 158 (1st Dist. 2019)
Facts: The Oakland Police and Fire Retirement System (“retirement system”) is governed by article XXVI of the Oakland City Charter. All sworn police officers hired on or before June 30, 1976, are members of the retirement system (Thereafter, hires are members of the separate Public Employees’ Retirement System).
Between September 2009 and June 2015, master police officer-terrorism pay (“MPO pay”) of 5% above the respective officer’s base pay was given to any officer who met four criteria: the officer must have (1) completed20 years of service in the Oakland Police Department; (2) maintained fully effective overall performance appraisals during the assignment; (3) attended and completed an approved antiterrorism/law enforcement response course; and (4) been assigned to the patrol division. Entitlement to the MPO pay was not dependent on performing any additional duties. Evidence showed that virtually 100 percent of officers with 20 years of service assigned to the patrol division received MPO pay.
The Retired Oakland Police Officers Association, along with several system members and beneficiaries (collectively, the “association”) filed a petition for writ of mandate that sought to compel the retirement system to include MPO pay in calculating of pension benefits for all retirees “in the ranks of police officer, sergeant, and lieutenant, who worked in patrol in their final three years of employment, and had 20 or more years of service at the time of their final three years of employment.”
In May 2016, a trial court held that MPO pay was attached to rank for purposes of pension calculations and granted the association’s petition. The retirement system, its board, and the City of Oakland (collectively, “Appellants”) appealed. Appellants contended the trial court erred in concluding that MPO pay is “compensation attached to … rank” as required by the Oakland City Charter for inclusion in pension benefits.
Held: The California First District Court of Appeal reversed. The Court held that MPO pay was not attached to rank, and that the MOU that added MPO pay did not restructure the relevant ranks or create an additional step within an existing rank.
The Court observed that under Kreeft v. City of Oakland, an element of compensation adheres to a rank if “the employee …
entitled to the compensation by virtue of the rank, and not his individual efforts over and above what are required to obtain the rank.” Here, the First District found that the requirement that an officer be assigned to the patrol division to receive MPO pay compelled the conclusion that MPO pay was not attached to the officer’s rank, but instead attached to the officer’s assignment. The Court noted that not all eligible employees are assigned to the patrol division; many are assigned to various other divisions such as homicide or training. MPO pay was intended partly as an incentive to encourage senior officers to request assignment to the patrol division. Therefore, employees of several ranks—officers, sergeants, lieutenants—could have worked a part of their career in the patrol division. The Court held they would have earned MPO pay, if otherwise qualified, because of that assignment to the division, not because of their rank. The Court also concluded that MPO pay did not create a new rank or new steps within existing ranks because an active police officer received the additional pay when assigned to the patrol division and not if later assigned to a different division.
Accordingly, the First District concluded that the trial court erred in granting the association’s petition for a writ of mandate, and reversed.
Although Proposition 64 legalized possession of not more than 28.5 grams of cannabis, it did not affect cannabis laws in prison; thus, appellant was not entitled to resentencing.
People v. Perry, 32 Cal. App. 5th 885 (1st Dist. 2019)
Facts: While serving a prison sentence for another offense, Nisaiah J. Perry in 2010 pled no contest to a charge of possession of marijuana in prison (Pen. Code section 4573.6(a)) and was sentenced to a two-year term. In November 2016, voters passed Proposition 64, which legalized possession of up to 28.5 grams of marijuana by adults 21 years of age and older. (Health & Saf. Code section 11362.1.) The new law stated that a person “serving a sentence for a conviction … who would not have been guilty of an offense, or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act 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 in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by that act.” (Health & Saf. Code section 11361.8(a).)
In May 2017, Perry petitioned for recall or dismissal of sentence, alleging that his Section 4573.6 offense involved only 14 grams of marijuana and was therefore eligible for expungement under Proposition 64. The trial court denied his petition, concluding that Perry failed to state a basis for relief because “Prop. 64 did not amend Penal Code section 4573.6, which remains a felony offense.” In January 2018, Perry again petitioned for relief under Proposition 64, despite having been convicted of violating Penal Code section 4573.6, rather than a provision of the Health and Safety Code, and that Health and Safety Code section 11361.8 required the court to presume he was eligible for resentencing or dismissal. The trial court denied the petition, stating that Perry had not cited new facts, circumstances or law to support reconsideration of its May 2017 denial. Perry appealed.
Held: The California Second District Court of Appeal held that Proposition 64 did not remove possession of marijuana in prison from the reach of Penal Code section 4573.6, the statute under which Perry was convicted, and therefore affirmed.
Perry argued that he would not have been guilty of an offense under Penal Code section 4573.6 if Proposition 64 had been in effect at the time of his offense but the Court held that Proposition 64 did not affect existing prohibitions against the possession of marijuana in prison or otherwise affect the operation of Penal Code section 4573.6.
The Court explained that Health & Saf. Code section 11362.1, which affirmatively states the legality of possession of not more than 28.5 grams of cannabis, also provides in subdivision (a) that it operates “[s]ubject to Sections 11362.2, 11362.3, 11362.4, and 11362.45.” The Court explained that Section 11362.45(d) specifically addresses cannabis in prison, providing that Section 11362.1 “does not amend, repeal, affect, restrict, or preempt: [¶] … [¶] …
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 … .”
The Court addressed whether the provision applied to not only “smoking or ingesting” cannabis, but also its “possession.” The Court explained that if the section did apply to “possession,” Proposition 64 intended to leave intact existing restrictions on possession of marijuana in correctional facilities while legalizing possession of the specified quantity of marijuana for the general California population.
The Second District explained that while Section 11362.45(d), does not expressly refer to “possession,” its application to possession was implied by its broad wording, specifically the use of the term “pertain” in the provision’s phrase “[l]aws pertaining to smoking or ingesting cannabis.” The Court stated that cannabis possession was related to its use, and particularly so in the context of possession in prison where it was “particularly obvious” that possession must “pertain” to smoking or ingesting. The Court explained that Section 11362.45(d)’s exception to Proposition 64’s legalization of adult cannabis use made clear that legalization was not meant to extend to use in prison.
A. District Court orders injunction enjoining sheriff from using bail schedule to determine release of detainees who cannot afford bail.
Buffin v. City & Cnty. of S.F., 2019 U.S. Dist. LEXIS 34253 (N.D. Cal. Mar. 4, 2019).
Facts: California Penal Code section 1269b requires superior court judges to “prepare, adopt, and annually revise a uniform countywide schedule of bail for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions.” The section further requires judges to consider the seriousness of the offense charged. Here, the San Francisco superior court established the Bail Schedule, a table with three columns identifying an “Offense” or Penal Code section, a short “Description” thereof, and a fixed “Bail” amount. The Sheriff uses the Bail Schedule to determine an arrestee’s bail amount. Specifically, the Sheriff locates each “booking charge,” tabulates the amounts designated per charge, and releases the detainee upon payment of that value. The Sheriff applies the process mechanically, making no individualized assessment regarding public safety, flight risk, ability to pay, or strength of the evidence.
San Francisco’s Bail Schedule is among the highest in the state. The Court explained that “[n]o reason or process is provided for the basis upon which the [bail] amounts were determined. Meanwhile, those arrestees who either can afford the amount of bail identified in the Bail Schedule or can post a surety bond for the same are simply released.” The process effectively meant that a wealthy arrestee charged with a violent offense could be released from custody within a matter of hours, while an indigent arrestee could remain incarcerated for as many as five days before seeing a judicial officer or have their case discharged for “lack of evidence.”
On Monday, October 26, 2015, San Francisco police arrested plaintiff 19-year-old Riana Buffin on two charges. Pursuant to the bail schedule, her combined bail amount for the two charges was set at $30,000. Buffin could not afford the bail. The District Attorney’s office ultimately decided not to file formal charges, and Buffin was finally released after she had spent approximately 46 hours in custody. Buffin lost her job because of her detention.
On Tuesday, October 27, 2015, San Francisco police arrested plaintiff 29-year-old Crystal Patterson at 3:49 p.m. for two separate counts for “assault with force likely to cause great bodily injury.” She was booked intojail, and told that her combined bail amount under this charge was set at $150,000 according to the bail schedule. Patterson was never taken to court. Patterson was released after an uncle paid an “initial down payment” of $1,500 on a $15,000 non-refundable premium to secure a bond from a surety bail agent. After her release, the District Attorney decided not to file formal charges against her and dischargedthe case.
The plaintiffs challenged the use of the schedule by defendant San Francisco Sheriff Vicki Hennessy (the “Sheriff”) to determine their release. The plaintiffs argued that plausible alternatives existed which would allow for their release and that the continued use of such a schedule violates the Due Process and Equal Protection clauses of the United States Constitution. In March 2017, at an earlier stage in the prior history of this case, the Court granted California Bail Agents Association (“CBAA”) limited intervenor status when the Sheriff refused to defend the use of the Bail Schedule. In a previous summary judgment order, the Northern District concluded that strict scrutiny review applied to the plaintiffs’ Due Process and Equal Protection claims.
The Court had also certified the plaintiff class as follows: All pre-arraignment arrestees (i) who are, or will be, in the custody of the San Francisco Sheriff; (ii) whose bail amount is determined by the Felony and Misdemeanor Bail Schedule as established by the Superior Court of California, County of San Francisco; (iii) whose terms of pretrial release have not received an individualized determination by a judicial officer; and (iv) who remain in custody for any amount of time because they cannot afford to pay their set bail amount.
In August 2018, California’s governor signed the California Money Bail Reform Act (“SB 10”) into law. Originally slated to go into effect in October 2019, SB 10 was suspended when a referendum to overturn it qualified for the November 3, 2020 ballot. As it is, SB 10 prohibits monetary conditions of release in the state, authorizing Pretrial Assessment Services to release, without court approval and prior to arraignment, low-risk and medium-risk arrestees with “the least restrictive nonmonetary condition or combination of conditions that will reasonably assure public safety and the person’s return to court.” SB 10, sections 1320.10(b), (c). Individuals arrested for misdemeanors (with certain exceptions) must be released within 12 hours. The Legislature’s goal was to “remedy” California’s pretrial system by “reducing reliance on money bail, supporting pretrial defendants with pretrial services, focusing detention resources on those who pose a risk of danger, reducing racial disparities, and ensuring that people are not left in jail simply because they cannot afford to pay for their release.”
SB 10 also requires counties to report to the state pretrial release and detention information biannually, which includes information about the percentage of individuals released pretrial, the percentage of those who fail to appear at a required court appearance, those who commit new crimes while on pretrial release, and the rate of judicial concurrence with recommended conditions of release. SB 10, section 1320.24(b). None of these provisions exist in the current statute, Penal Code section 1269b (“Section 1269b”).
Held: The California Northern District Court granted the plaintiffs’ motion for summary judgment challenging the use of San Francisco’s Felony and Misdemeanor Bail Schedule (the “schedule” or “Bail Schedule”) as a basis to release pre-arraignment detainees where the detainees could not afford the amount set forth in the schedule. The Court found that the evidence showed that the Sheriff’s use of the Bail Schedule significantly deprived plaintiffs of their fundamental right to liberty, and a plausible alternative existed which was at least as effective and less restrictive for achieving the government’s compelling interests in protecting public safety and assuring future court appearances.
The Court considered the plaintiffs’ and defendants’ cross-motions for summary judgment. The Court explained that “when parties submit cross-motions for summary judgment, each motion must be considered on its own merits.” Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). If, however, the cross-motions are before the court at the same time, the court must consider the evidence proffered by both sets of motions before ruling on either one. Riverside Two, 249 F.3d at 1135-36.
The Court explained that it previously found that whether the Sheriff’s use of the Bail Schedule violates the Due Process and Equal Protection clauses of the United States Constitution was an issue subject to strict scrutiny analysis.
Strict Scrutiny Application
The Northern District first considered whether the Sheriff’s use of the Bail Schedule “significantly” deprived plaintiffs of their fundamental right to liberty due fully to their indigence. The Court explained that San Francisco arrestees who were released after posting bail were detained an average of 12.8 hours less than those who were not able to post bail.
Plaintiff Buffin not only lost time but, like other members of the plaintiff class, lost her job due to her detention. Other class detainees lost their housing, public benefits, and child custody due to their detention. Detention led some to incur significant long-term debt due to their period of detention, and others pled guilty or no contest an early stage in the proceedings in order to secure their release. The Court concluded that, given these consequences resulting from the extended duration of pre-arraignment detention, the deprivation was indeed significant. Accordingly, plaintiffs had shown that the Sheriff, through use of the Bail Schedule, had significantly deprived plaintiffs of their fundamental right to liberty by sole reason of their indigence.
Next, the Court explained that, under the strict scrutiny standard, plaintiffs must identify a plausible alternative that is less restrictive and at least as effective at serving the government’s compelling interests, here identified as protecting public safety and assuring future court appearances. Here, the plaintiffs’ proposed alternative to Section 1269b was a computerized risk assessment process that was “essentially implemented” already by SB 10’s “more detailed version.” By already enacting SB 10, the government itself presented a less restrictive yet at least as effective alternative to accomplish the express goal of reasonably assuring public safety and individuals’ return to court. Unlike the current bail schedule reliance, SB 10 requires all jurisdictions to generate prior to arraignment for each arrestee “[t]he results of a risk assessment using a validated risk assessment instrument, including the risk score or risk level.” SB 10, section 1320.9(a)(1).
The Court concluded that the Bail Schedule could not be deemed “necessary.” The Court found that the plaintiffs’ proposed alternative, which required an individualized inquiry into the risk an arrestee has to public safety and of failure to appear, was consistent with the government’s goals of enhancing public safety and ensuring court appearance without perpetuating the deprivation of one’s liberty.
The Court thus held that plaintiffs had made a prima facie showing that the alternative was less restrictive and at least as effective at serving the state’s compelling interests and that CBAA could not show that the alternative would be less effective at serving the government’s compelling interests. The Court thus concluded that CBAA failed to meet its burden under strict scrutiny.
Accordingly, the Northern District Court granted plaintiffs’ motion for summary judgment and denied CBAA’s cross-motion. The Court then issued an injunction enjoining the Sheriff from using the Bail Schedule as a means of releasing a detainee who cannot afford the amount.
For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 9, available at www.jones-mayer.com.
B. District Court finds that state law requiring sheriffs to have law enforcement experience is constitutional.
Boyer v. Cnty. of Ventura, 33 Cal. App. 5th 49 (2nd Dist. 2019)
Facts: In February 2018, Bruce Boyer applied to be included on the ballot for Ventura County Sheriff in the next primary election. Ventura County Clerk Mark Lunn informed Boyer four days later that Boyer, who had no law enforcement experience, had failed to submit documents that established his qualifications to run for county sheriff, as required by Elections Code 13.5 and Government Code section 24004.3. Boyer replied that the statutes were unconstitutional and that Lunn’s refusal denied citizens the right to choose the elected officials they wanted.
In late March 2018, Boyer filed a petition for writ of mandate to compel Ventura County (“County”) and Lunn to place Boyer on the June 5, 2018 primary election ballot for county sheriff. Boyer served the writ in April 2018, four days after County Clerk Mark Lunn was required by federal and state law to submit the ballot materials to the printer. Lunn later declared that changing the ballots at that late a date would cost between $800,000 and $1 million, and require that 430,000 sample ballots and 1,105,735 ballot cards be reprinted. The trial court ruled that Government Code section 24004.3 was constitutional and denied the petition. The court further determined the submission of the petition was untimely and thus barred by the doctrine of laches. Boyer appealed, arguing Section 24004.3 violated state and federal laws.
Held: The California Second District Court of Appeal affirmed the trial court’s holding that Government Code section 24004.3 was constitutional. The Court of Appeal determined that “constitutional, statutory, and case law compel affirmance.”
California Constitution Article III, Section 3.5(a) provides: “An administrative agency has no power… [t]o declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional.” As no such determination existed, the Court correspondingly held that Lunn could not have declared Section 24004.3 unconstitutional or have refused to enforce it.
The Court explained that, as county clerk, Lunn had a ministerial duty to follow Elections Code section 13.5. The section states that a legally qualified candidate for sheriff must file a declaration of candidacy accompanied by documentation that the person meets the statutory qualifications to run as county sheriff as set forth in Government Code section 24004.3. Government Code section 24004.3, in turn, sets forth the law enforcement experience and education qualifications required of a candidate running for county sheriff. Specifically, a candidate for sheriff must possess one of five combinations of education and law enforcement experience – and Boyer had no law enforcement experience.
Relying on Wallace v. Superior Court’s holding that “it …is beyond the power of the Legislature to add [a particular] qualification in view of the fact that the Constitution has established the exclusive qualifications that can be required for the office of superior court judge,” Boyer argued that the Legislature similarly lacked the power to “add” candidate ballot qualifications for county sheriff since the state Constitution does not require that county sheriff candidates have prior law enforcement experience. However, the Court explained that California Constitution, article XI, section 1(b) states: “The Legislature shall provide for … an elected county sheriff…in each county.” The Second District explained that “the Legislature enjoys plenary legislative powers unless there is an explicit prohibition of legislative action in the Constitution itself,” including the express power to set candidacy requirements for the elected office of county sheriff.
Boyer also argued on appeal that Section 24004.3 violated the First Amendment by restricting the pool of sheriff candidates to law enforcement personnel, which excluded civilian views from being expressed. Boyer considered candidacy for office to be a fundamental right. However, the Court determined that the free speech claim failed because the state had a strong interest in ensuring officeholder qualifications. The Court agreed with the Sixth District’s views expressed in Rawls v. Zamora pertaining to the office of county sheriff: “There can be no doubt that the state has a strong interest in assuring that a person with aspirations to hold office is qualified to administer the complexities of that office.And the authority of the state to determine the qualifications of their most important governmental officials is an authority that lies at the heart of representative government.” Rawls concluded that Section 24004.3 “does not significantly impair access to the ballot—there are five broad qualifications, which embrace people of varying experience. The section does not stifle speech or dictate electoral outcome in any sense.”
The Court also found support for the trial court’s laches finding. The Second District Court of Appeal accordingly affirmed.
For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 11, available at www.jones-mayer.com.
C. Sheriff’s issuance of memorandum restricting department communications with ICE was a protected discretionary act under California Government Code section 820.2.
Steinle v. City & Cnty. of S.F., 2019 U.S. App. LEXIS 8784 (9th Cir. Mar. 25, 2019)
Facts: In February 2015, San Francisco Sheriff Mirkarimi informed the federal government that the Sheriff’s Department would not honor Immigration and Customs Enforcement (“ICE”) detainer requests or notify ICE of the pending release of any undocumented alien unless a judicial order or warrant was issued for the alien’s removal. In a March 13, 2015 memorandum (the “Memo”) to all Sheriff’s Department employees, the Sheriff established protocols and parameters for communications between Sheriff’s Department employees and ICE. The Memo changed the “longstanding policy and procedure” of the Sheriff’s Department “to freely provide information to ICE regarding undocumented immigrant felons in custody.” The Memo stated that employees “shall not provide” “non-public” information to ICE, including “release dates or times,” but that employees were authorized to provide certain “public” information to ICE. Disclosure of any information beyond the public information explicitly authorized by the Memo would require consultation with the Sheriff’s Department’s legal counsel, confirmation by counsel that disclosure was required by court order or law, and authorization by Sheriff Mirkarimi.
The Memo referenced Chapter 12H of the San Francisco Administrative Code, otherwise known as the “Sanctuary City Law.” The Sanctuary City Law limits information that San Francisco and its officers and employees may share with federal immigration officials, but it includes an exception for cooperation as required by state or federal law. The Court noted, “[i]t also allows, but does not require, communication and cooperation with federal authorities regarding individuals previously convicted of felonies. The Memo, however, contained no exception regarding individuals previously convicted of felonies.”
Juan Francisco Lopez-Sanchez was an undocumented alien with a criminal record consisting of at least seven felony convictions from 1993 to 2011 related to controlled substances and illegal reentry after deportation. He was removed to Mexico at least five times during this period. After a 46-month sentence in federal prison, Lopez-Sanchez was released to Sheriff’s Department custody on March 26, 2015, to face felony charges for selling marijuana.
The charges against him were dropped on March 27, 2015, and on that same day, ICE sent a detainer request asking the Sheriff’s Department to notify ICE 48 hours before releasing Lopez-Sanchez and to hold him until ICE could take custody of him. The Sheriff’s Department ignored the detainer request, releasing Lopez-Sanchez without notifying ICE on April 15, 2015. After his release, Lopez-Sanchez acquired a stolen government-issued handgun and approximately two and one-half months after he had been released by the Sheriff’s Department, he shot and killed 32-year-old Kathryn Steinle in San Francisco. Lopez-Sanchez did not apparently know Steinle. After the shooting, ICE stated that local authorities could have prevented the killing by “merely notify[ing]” ICE.
Steinle’s parents, James Steinle and Elizabeth Sullivan (“Plaintiffs”) filed a complaint against the City and County of San Francisco and Sheriff Ross Mirkarimi (collectively, “City Defendants”), alleging general negligence. The District Court granted City Defendants’ subsequent motion to dismiss all claims pursuant to Government Code sections 815.2(b) and 820.2 without leave to amend. The District Court concluded that the issuance of the Memo was an immune discretionary act. The Plaintiffs appealed, challenging only the dismissal of Plaintiffs’ general negligence claim against City Defendants.
Held: The Ninth Circuit Court of Appeals determined that the question of discretionary immunity raised was controlled by California law, and concluded that Government Code section 820.2 barred plaintiffs’ negligence claim. The Sheriff’s issuance of the memorandum at issue, the Court found, was a discretionary act entitled to immunity.
California Government Code section 820.2 provides: “[A] public employee is not liable for an injury resulting from his act . . . where the act . . . was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” The Ninth Circuit held that the issuance of the Memo was a discretionary act that was entitled to immunity under Section 820.2, and that City Defendants were immune from liability. In reaching its decision, the Court explained that it made “no judgment as to whether or not the policy established by the Memo was wise or prudent. That is not our job. ‘A federal court applying California law must apply the law as it believes the California Supreme Court would apply it.’ Gravquick A/S v. Trimble Navigation Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003).”
Citing California Supreme Court cases, the Court initially explained that the “[i]mmunity is reserved for those ‘basic policy decisions which have been expressly committed to coordinate branches of government,’ and as to which judicial interference would thus be ‘unseemly.’ Such ‘areas of quasi-legislative policy-making are sufficiently sensitive’ to call for judicial abstention from interference that ‘might even in the first instance affect the coordinate body’s decision-making process[.]’” (Caldwell v. Montoya,quoting Johnson v. State of California.) The Court also explained that an actual use of discretion must be involved for immunity to attach to the public employee.
Here, the Ninth Circuit found that the Memo, on its face, reflected a “basic policy decision” that had been expressly committed to a coordinate branch of government. The Sheriff chose to issue the Memo, and he had “sole and exclusive authority to keep the county jail and the prisoners in it” under Cal. Gov’t Code section 26605. The Court also found an actual use of discretion by the Sheriff because he considered relevant laws and regulations, decided what information should and should not be shared with ICE, and consciously changed longstanding policy and procedure to freely provide information to ICE. The Court added that the debate over policies that limited cooperation with immigration authorities suggested that the issue was “sufficiently sensitive” such that judicial interference into the matter would be “unseemly.”
The Court also held that the District Court correctly held that California Health and Safety Code section 11369 was inapplicable because the Sheriff’s Department was not the “arresting agency,” and Section 11369 did not require transmission of an inmate’s release date to ICE. Finally, the Court rejected plaintiffs’ claim that other local laws prohibited the Sheriff from limiting cooperation with ICE because none contained text that could be construed as prohibiting the issuance of the Memo or requiring that the Sheriff provide release-date information to ICE.
The Court thus concluded the issuance of the Memo was a discretionary act entitling City Defendants to Section 820.2 immunity. Accordingly, the Ninth Circuit Court of Appeals affirmed the decision of the District Court.
For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 12, available at www.jones-mayer.com.
D. Filing a false CHP-180 form violates Vehicle Code section 10501(a) and commonly results in violation of Penal Code section 118, so the specific Section 10501(a) preempts the general Section 118.
People v. Joseph, 244 Cal. Rptr. 3d 380 (Cal.App. 2nd Dist. 2019)
Facts: Deputy Sheriff Kurt Wurzer responded to the scene of a failed robbery in which witnesses said a Chrysler car driven by an adult picked up the young robbers and drove away. During his interview of some of the witnesses, Wurzer received a report that a stolen light green Chrysler 300 registered to defendant Michael Joseph had been found nearby with a key in the ignition. The Chrysler was found close to the robbery scene. Joseph, questioned at his residence, told the deputy that his car had been stolen earlier that day. Joseph signed a CHP-180 form that the deputy provided that reported Joseph’s vehicle stolen under penalty of perjury.
Officers found receipts from a fast food restaurant in Joseph’s car. Surveillance video from the night of the robberies showed Joseph driving once alone through the restaurant’s drive-through in his Chrysler about an hour before the robbery, then getting out to talk to several young men who then got in Joseph’s car, then going through the drive-through a second time and buying six burritos. Other surveillance footage showed Joseph in his Chrysler parked near the robbery with passenger door open at the time the young robbers beat the robbery victim’s husband who had pursued them. The assault location and the robbery location were within about 500 feet from Joseph’s residence. Joseph said at first that he had been drunk at a fair and could not find his car, but after being told about the surveillance video said the young men he encountered at the restaurant robbed him, forced him at knifepoint to transport them before and after they completed the robbery, and then forced him to drive away. Then Joseph said the young men. informed him that his car was used in a robbery, told him to get out of the car, he did so, and never saw them again. He denied robbing anyone. A jury found Joseph guilty of two counts of second degree robbery and one count of perjury by declaration pursuant to Penal Code section 118(a). Joseph appealed, arguing, among other things, as to the perjury count that Vehicle Code section 10501(a) preempted Section 118(a).
Held: The California Second District Court of Appeal reversed on the perjury conviction under Section 118(a). Section 118(a) provides that: “Every person who … declares … under penalty of perjury in any of the cases in which … declarations … [are] permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.” A “declaration” is an unsworn written statement certified to be true under penalty of perjury. Vehicle Code section 10501(a) states that “[i]t is unlawful for any person to make or file a false or fraudulent report of theft of a vehicle required to be registered under this code with any law enforcement agency with intent to deceive.”
The Court then explained that, under In re Williamson, a general statute including the same conduct as a specific statute is preempted by that specific statute because courts infer that the Legislature intended that conduct to be prosecuted exclusively under the specific statute.
Here, the Court said that Section 10501 specifically and narrowly addressed Joseph’s conduct of filing a false vehicle theft report compared to the more general perjury description in Section 118(a). Looking at the manner in which Joseph violated Section 10501 to determine whether that specific conduct would necessarily or commonly result in a violation of the general statute, the Court observed that form CHP-180 was the standard form used to report a stolen vehicle and consequently filing a CHP-180 was the most common ways Section 10501 was violated. The Court explained that it followed that filing a false vehicle theft report in violation of Section 10501 would commonly result in a violation of Penal Code section 118. The Court also noted that there was no provision in the Vehicle Code requiring that a stolen vehicle report be filed under penalty of perjury, and no other indication that the Legislature intended to allow prosecution under Section 118 as well as Section 10501. Therefore, the Court concluded that Section 10501 preempted Section 118, barring his conviction for perjury by declaration under Section 118 (a). Accordingly, the Second District reversed as to Joseph’s conviction on this count.
E. Under Proposition 47, identity theft can be treated as a misdemeanor if the value of the personal identifying information does not exceed $950 under Penal Code section 490.2.
People v. Chatman, 33 Cal. App. 5th 60 (1st Dist. 2019)
Facts: A jury convicted defendant Shakelia Renee Chatman for committing several forms of identity theft in violation of three subdivisions of Penal Code section 530.5, and one count of second degree commercial burglary in violation of Penal Code section 459. In late 2015 and into 2016, Chatman had taken mail and was found in possession of, among other things, mail, checks, a checkbook, personal identifying information, and credit cards; had made charges on some cards; and forged a check and cashed it. Her victims were three individuals. The court imposed a split sentence under Penal Code section 1170(h), consisting of two years in custody and three years of mandatory supervision. Pertinent here, no evidence was introduced suggesting the value of any of the personal information or property in question exceeded $950 and, in most instances, the evidence clearly showedthe value to be much less than that threshold.
In November 2014, California voters passed Proposition 47, which became effective the next day. The proposition reduced certain theft-related offenses from felonies or wobblers to misdemeanors except as to certain ineligible offenders. Proposition 47 also specified an intent to “[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft….” Chatman appealed her convictions, arguing that her convictions should be reduced under Proposition 47’s provisions.
Held: The California First District Court of Appeal considered the question as to whether, under the provisions of Proposition 47, identity theft must be treated as a misdemeanor if the value of the personal identifying information at issue does not exceed $950, either as shoplifting under section 459.5 or as petty theft under section 490.2. The Court held that the defendant’s convictions for identity theft must for most of the conviction counts be reduced because there was no evidence that the value of any of the personal identifying information defendant unlawfully obtained or used exceeded $950.
The Attorney General argued that the offenses specified in section 530.5, though referred to as forms of “identity theft,” were not truly theft offenses and didnot come within the scope of Sections 459.5 or 490.2.
The Court determined that some of the counts for conviction under certain Section 530.5 subdivisions should be reduced to misdemeanors for violations for Section 459.5, which created the crime of shoplifting. Section 459.5 referred to “entering a commercial establishment” in its shoplifting definition, limited its scope to amounts not exceeding $950, and specified that “[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.” Citing People v. Jimenez, the First District explained that when the underlying conduct constituted shoplifting, Section 459.5 barred identity theft charges under Section 530.5(a), and therefore must be reduced to misdemeanor under Section 459.5.
Although the Court found that Section 459.5 did not apply to other Section 530.5 subdivisions counts under which Chatman was convicted that did not constitute shoplifting, Section 490.2 did apply to the conduct pertaining to those counts. Proposition 47 added Penal Code section 490.2. Section 490.2 (a) provides in pertinent part: “[O]btaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor … .”
The First District explained that in People v. Romanowski (2017) 2 Cal.5th 903, the Supreme Court held that Section 490.2 reduces to a misdemeanor the acquisition or possession of another’s access card account information, otherwise penalized by Section 484e (d), if the information is valued at $950 or less. And although Section 484e(d) referred to an offense of grand theft, “‘[n]othing in the operative language of
[section 490.2, subdivision (a)]
suggests an intent to restrict the universe of covered theft offenses to those offenses that were expressly designated as ‘grand theft’ offenses before the passage of Proposition 47.’ (People v. Page (2017) 3 Cal.5th 1175, 1186.” The First District explained that the Romanowski Supreme Court found Section 484e(d) presented no reason to disregard the limitation to misdemeanor treatment prescribed by Proposition 47 if the $950 threshold was not crossed.
Here, the Court observed that there was no evidence that the value of any personal identifying information Chatman unlawfully obtained or used exceeded $950. Accordingly, the Court concluded that the specified offenses must be reduced to misdemeanors, under either Section 459.5 or Section 490.2.
F. Compliance with prison regulations in an institutional setting does not satisfy the requirement for an ‘honest and upright life’ provided by Penal Code section 1203.4a.
People v. Maya, 33 Cal. App. 5th 266 (2019)
Facts: In June 2011, Misael Vences Maya pled guilty to possession of methamphetamine and to driving under the influence. Maya had been informed of immigration consequences of his plea, including possible deportation. In July 2011, the trial court denied probation and sentenced him to prison for the convictions.
In December 2012, Maya’s prison term was complete, and the United States Department of Homeland Security (“DHS”) took Maya into custody. DHS issued a removal notice stating that Maya was subject to removal as a lawful permanent resident of the United States because he had been convicted for possession of a controlled substance. In 2015, Maya filed an application to reduce his drug possession conviction to a misdemeanor under Proposition 47 statutes. The court granted his application for reclassification.
In May 2018, Maya attempted to have this newly designated misdemeanor drug possession conviction expunged under Penal Code section 1203.4a, which addresses rehabilitation of misdemeanants. The trial court denied his motion to expunge the misdemeanor drug conviction, stating that Maya could not establish that he had lived “an honest and upright life” as required by section 1203.4a (a). In ruling, the trial judge decided that being “in custody for substantial periods of time” cannot be considered leading an “honest and upright life” as required by statute: “Mr. Maya has never been released from custody [and there was] no opportunity … to determine whether he leads a law-abiding life when out of custody … .”
Maya then filed a motion for reconsideration, which contained a probation report from April 2018. The report stated: “There remains no demonstrated, or measurable level of compliance in the community [by Maya], and there has been no way to evaluate his ability to obey all laws.” The court denied Maya’s motion for reconsideration. Maya appealed.
Held: The California Second District Court of Appeal affirmed the trial court’s order denying Maya’s motion to expunge his misdemeanor conviction for possession of methamphetamine.
Maya contended on appeal that the trial court should have considered his good behavior in federal custody as evidence that he had lived “an honest and upright life” under Section 1203.4a. The First District held that the trial court did not abuse its discretion by concluding that Maya had not established that he had led “an honest and upright life” during his state and federal custody. The Court explained that a custodial setting necessarily restricts a prisoner’s exercise of free will, and that “an honest and upright life” required a showing of more than mere compliance with prison regulations or taking prison classes as Maya’s counsel had stated during motion arguments. The Court added that prison confinement “necessarily precludes evidence of inmate behavior in the face of outside temptation.” The Court viewed the evidentiary level required to show “an honest and upright life” a high standard to meet.
The dissenting judge noted that Maya was in custody because of his immigration status and not because he had committed a new crime. However, the Court stated that Maya bore responsibility for that status. The Court said a proper evaluation of how Maya would conduct himself in free society was not possible since he was in a controlled custodial environment.
Accordingly, the Second District
 18 U.S.C. section 2703(d).
 565 U.S. 400, 404, (2012).
 547 U.S. 843, 846 (2006).
 Id. at 852-53.
 573 U.S. 373 (2014).
 875 F.3d at 1275.
 138 S. Ct. 2206 (2018).
 Miranda v. Arizona, 384 U.S. 436 (1966).
 Rhode Island v. Innis, 446 U.S. 291, 300–301 (1980).
 See, for example, Arizona v. Mauro, 481 U.S. 520, 521, 526–529 (1987).
 In the 2018 case United States v. Carpenter, the Supreme Court held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.” 138 S. Ct. 2206, 2217 (2018).
 Miranda v. Arizona, 384 U.S. 436 (1966).
 149 Cal.App.4th 674, 687 (4th Dist. 2007).
 Client Alert Vol. 32, No. 7, California Supreme Court to Weigh in on Pension Formula Dispute (Mar. 8, 2017).
 Client Alert Vol. 33, No. 1, Panel of First District Court of Appeal Declines to Follow Fellow Panel’s Analysis in Pension Formula Case (Jan. 19, 2018).
 Cal. Gov’t Code sections 7522 et seq.
 The “California Rule” refers to the scope of constitutional protections afforded public pension rights by prior Supreme Court decisions, beginning with Allen v. City of Long Beach, 45 Cal. 2d 128 (1955). Generally, the “California Rule” is that public employees enter into a contract with their employers on the day they begin work, and the pension benefits they are offered as part of that contract cannot be diminished, unless replaced with similar benefits.
 68 Cal.App.4th 46, 57-58 (1st Dist. 1998).
 Government Code Section 24004.3 provides:
24004.3. (a) No person is eligible to become a candidate for the office of sheriff in any county unless, at the time of the final filing date for election, he or she meets one of the following criteria:
(1) An active or inactive advanced certificate issued by the Commission on Peace Officer Standards and Training.
(2) One year of full-time, salaried law enforcement experience within the provisions of Section 830.1 or 830.2 of the Penal Code at least a portion of which shall have been accomplished within five years prior to the date of filing, and possesses a master’s degree from an accredited college or university.
(3) Two years of full-time, salaried law enforcement experience within the provisions of Section 830.1 or 830.2 of the Penal Code at least a portion of which shall have been accomplished within five years prior to the date of filing, and possesses a bachelor’s degree from an accredited college or university.
(4) Three years of full-time, salaried law enforcement experience within the provisions of Section 830.1 or 830.2 of the Penal Code at least a portion of which shall have been accomplished within five years prior to the date of filing, and possesses an associate in arts or associate in science degree, or the equivalent, from an accredited college.
(5) Four years of full-time, salaried law enforcement experience within the provisions of Section 830.1 or 830.2 of the Penal Code at least a portion of which shall have been accomplished within five years prior to the date of filing, and possesses a high school diploma or the equivalent.
(b) All persons holding the office of sheriff on January 1, 1989 shall be deemed to have met all qualifications required for candidates seeking election or appointment to the office of sheriff.
 141 Cal.App.2d 771, 774 (3rd Dist. 1956).
 Marine Forests Society v. California Coastal Com., 36 Cal.4th 1, 39 (2005).
 107 Cal.App.4th 1110, 1117 (6th Dist. 2003).
 The Court later explained, “However, this section does not, by express provision or implication, mandate that the Sheriff (or any other officer) provide information to ICE regarding a convicted felon—it simply makes clear that the Chapter does not prohibit the same. As the Chapter does not bar the Memo, it cannot have the effect of stripping the Sheriff of his discretionary authority.”
 Section 815.2(b): “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”
 10 Cal. 4th 972 (1995).
 69 Cal. 2d 782, 793-4 (1968).
 43 Cal.2d 651 (1954).
 People v. Murphy, 52 Cal.4th 81, 86 (2011).
 22 Cal.App.5th 1282 (2nd Dist. 2018).
 People v. Zeigler, 211 Cal.App.4th 638, 652, 654 (6th Dist. 2012).