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A. Search of parolee’s cellphone did not violate Fourth Amendment because legitimate interest existed in determining whether defendant violated his parole and there was reasonable suspicion that defendant was involved in residential burglary.

People v. Delrio, 45 Cal. App. 5th 965 (1st Dist. 2020)

Facts: In September 2014, residents of a Redwood City home reported a residential burglary. A surveillance video showed two individuals walking from a black truck to the burglarized house and then walking away, each carrying a sack. A sheriff’s deputy contacted Alejandro Manuel Delrio and told him that a vehicle registered to him had been involved in a burglary. Delrio denied any involvement, claimed that the truck must have been used without his permission if it was involved in the burglary, and then completed paperwork to report the vehicle stolen. The sheriff’s deputy then viewed the surveillance video and concluded that one of the two individuals shown in the video had “a very close resemblance to [Delrio].” The sheriff’s deputy recommended that Delrio be contacted again as a suspect. After conducting a records check on Delrio, police learned that Delrio was on active parole. As a parolee, Delrio was subject to a statutorily mandated parole term that required him to submit to warrantless and suspicionless searches of his person, his residence, and any property under his control by a parole officer or other peace officer at any time.

Several police officers went to Delrio’s house to conduct a parole search. During the search of the house, officers located a cell phone that belonged to Delrio. After an officer demanded the phone’s passcode, Delrio complied. A detective downloaded the contents of the phone before giving it back to Delrio. The officers then left, but Delrio asked them to return to the house, whereupon Delrio showed a cell phone photo supporting his subsequent admission that he was involved in the burglary and had sold the stolen jewelry.

Delrio was charged by information with first degree burglary and other offenses. The trial court denied Delrio’s motion to suppress the evidence obtained from the cell phone search and all statements made by him as fruit of that search. Delrio then pleaded guilty to first degree burglary and admitted enhancements. The trial court sentenced Delrio to seven years in state prison. Delrio appealed, arguing against the trial court’s denial of his motion suppress.

Held: The California First District Court of Appeal explained that with regard to police searches and seizures, “[t]he ‘touchstone of the Fourth Amendment is reasonableness,’” which “is measured in objective terms by examining the totality of the circumstances.” (Ohio v. Robinette (1996) 519 U.S. 33, 39.) In determining reasonableness, courts assess the degree to which the search “intrudes upon an individual’s privacy,” as well as “the degree to which it is needed for the promotion of legitimate governmental interests.” (United States v. Knights (2001) 534 U.S. 112, 118–119.)

A warrantless search is per se unreasonable under the Fourth Amendment absent a recognized exception. (U.S. Const., 4th Amend.; Katz v. United States (1967) 389 U.S. 347, 357.) A parole search conducted pursuant to California Penal Code section 3067 (b)(3) constitutes one of those exceptions. (Samson v. California (2006) 547 U.S. 843; People v. Schmitz (2012) 55 Cal.4th 909, 916.) Under that statute, “every inmate eligible for release on parole ‘is subject to search or seizure by a … parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause.’” (Schmitz, at p. 916.)

The First District noted that because such searches are mandated as a term of every parolee’s release, “an officer’s knowledge of a parolee’s status is equivalent to knowledge of the applicable search condition.”[1] As the California Supreme Court has emphasized, “[w]arrantless, suspicionless searches are a vital part of effective parole supervision” in California. (Schmitz, at p. 924; accord, Samson, supra, at p. 854.)

The First District observed that “an inmate-turned-parolee remains in the legal custody of the California Department of Corrections [and Rehabilitation] through the remainder of his term … and must comply with all of the terms and conditions of parole” (Samson, supra, at p. 851.), including the term permitting warrantless and suspicionless searches at any time.[2] Therefore, parolees “have severely diminished expectations of privacy by virtue of their status alone” (Samson, supra, at p. 852) in the determination of reasonableness for Fourth Amendment searches and seizures.

On appeal, Delrio argued the search violated his Fourth Amendment rights because his written parole conditions gave him a reasonable expectation of privacy in the contents of his cell phone. Delrio argued that because the form used by the California Department of Corrections and Rehabilitation (“CDCR”) to notify him of his parole conditions did not have boxes checked for certain “special conditions of parole” that would have required him to give his consent to, and any passwords for, searches of his electronic devices, he was not provided clear and unambiguous notice that his cell phone was subject to a parole search

The Court first noted that Delrio did not cite any cases in which a search or seizure of a parolee’s cell phone was invalidated under the Fourth Amendment, nor could the Court find any such cases. Thus, the Court stated that “[t]he issue presented here is whether unchecked boxes on defendant’s CDCR form, standing alone, is a circumstance warranting a break with this clear trend.”

The Court noted that the first page of Delrio’s CDCR form here stated: “You, your residence, and any property under your control are subject to search or seizure by a probation officer, an agent or officer of the California Department of Corrections and Rehabilitation, or any other peace officer, at any time of the day or night, with or without a search warrant, with or without cause.” In subsequent pages, the form lists special conditions with boxes to check and a space for the parolee to initial. The Court noted that the checkboxes at issue here were “but two of 106 special conditions listed in the CDCR form that, if selected, either require or forbid certain conduct by a parolee. Such conditions, however, do not appear intended to set restrictions on the searches and seizures authorized by Penal Code section 3067, subdivision (b)(3), or to elevate a parolee’s expectations of privacy.”

The First District distinguished Riley v. California, (2014) 573 U.S. 373, in which the United States Supreme Court held that a law enforcement officer may not conduct a warrantless search of a person’s cell phone under the exception to the warrant requirement for searches incident to arrest, noting the “immense storage capacity” of cell phones, their ability to collect many distinct types of information in once place, and the pervasiveness of cell phone use in everyday life. (Id. at pp. 394–395.) The First District explained that Riley involved a different exception to the warrant requirement (search incident to arrest), as well as different governmental interests (preventing harm to officers and destruction of evidence) than those promoted by the parole search exception. (See Riley, supra, 573 U.S. at p. 386.)

Moreover, the First District found no court that had applied Riley’s holding to parole searches, and federal decisions had upheld warrantless searches of parolee cell phones. The Court noted that although the Ninth Circuit Court of Appeals had applied some of Riley’s reasoning in a probation search case (U.S. v. Lara (9th Cir. 2016) 815 F.3d 605), it declined to do so in a subsequent parole search case on the ground that the defendant’s “parole status alone” distinguished the case from Lara and Riley. (U.S. v. Johnson (9th Cir. 2017) 875 F.3d 1265.) However, given the discussion of privacy expectations raised by searches of cell phones raised in the “landmark decision in Riley,” the First District “assume[d], for the sake of argument, that where, as here, the scope of a parole search condition form lacks clarity with regard to cell phones, the parolee may have some reasonable expectation of privacy in his or her cell phone and its data.” The court proceeded to apply the totality of circumstances analysis weighing the degree of intrusion upon privacy interests against the degree to which the search promotes legitimate governmental interests.

The First District noted that the California Supreme Court emphasized that Penal Code section 3067(b)(3), provides that “every parolee is subject to warrantless and suspicionless parole searches,” and the reasonable scope of a parole search is not “strictly tied to the literal wording of the notification given to the parolee upon release.” (Schmitz, supra, 55 Cal.4th at p. 928.) The Court explained that because the reasonableness of a parole search is assessed based on the totality of circumstances, and not from a theory of consent, the officers who performed Delrio’s parole search were defendant were not required to first ascertain and parse the language of the CDCR form; they were only required to know of Delrio’s parole status in order to conduct a parole search. The CDCR form issue was just one circumstance to consider in the totality of circumstances.

Considering the government’s legitimate interests in evaluating the totality of circumstances, the Court of Appeal explained that California has an “overwhelming” interest in supervising parolees in order to detect possible parole violations, reduce recidivism, and promote reintegration of parolees into society. (Samson, supra, 547 U.S. at p. 853.) The government also “has a duty not only to assess the efficacy of its rehabilitative efforts but to protect the public, and the importance of the latter interest justifies the imposition of a warrantless search condition.” (Reyes, supra, 19 Cal.4th at p. 752.)

The First District explained that here, the officers knew Delrio was a parolee and they had specific, articulable reasons to suspect he was involved in a residential burglary and was therefore reoffending because the video surveillance evidence showed that the burglary involved Delrio’s truck and two individuals, one of whom bore a very close resemblance to Delrio. The Court explained that under these circumstances, the government had a particularly acute interest in determining whether Delrio had violated the conditions of his parole and was a danger to the public. Moreover, it was reasonable for the investigating officers to believe there might be evidence of the burglary on Delrio’s cell phone, such as text messages or calls with his accomplice, or photographs or location information regarding the targeted residence.

In evaluating the totality of the circumstances, the Court thus concluded that the government’s substantial interests in supervising Delrio and protecting the public outweighed any perceived expectation of privacy that Delrio may have had in his cell phone due to the lack of clarity in the written search conditions. The First District thus concluded that that the officers’ search here was not unreasonable, and accordingly affirmed.

B. Absent substantial and particularized justification to justify burden and intrusiveness imposed by electronic device search condition on probationer, search condition was unreasonable.

People v. Cota, 45 Cal. App. 5th 786 (4th Dist. 2020)

Facts: Police received a call that a violent mentally ill man in visibly soiled clothes was seen swinging a machete attached to a long stick in a San Diego public park. Upon arrival, police found Fernando L. Cota standing near a water fountain with the machete balanced on top of the fountain. Cota then sat down and pulled a six-inch drywall knife from his waistband, placing it next to him. The officers arrested Cota for an outstanding misdemeanor warrant after running a records check.

Cota pled guilty to the felony offense of carrying a concealed dirk or dagger in exchange for three years of probation and the anticipated reduction of his felony conviction to a misdemeanor at the end of one year once he completed drug treatment and mental health counseling.

The trial court accepted the recommendation and sentenced Cota to three years of probation with several conditions. Cota objected to, among other conditions, a condition compelling him to submit electronic devices for search at any time when required by a probation or law enforcement officer. The trial court imposed these conditions over Cota’s objections. Cota appealed the electronic device search condition, among others.

Held: The California Fourth District Court of Appeal explained that trial courts have wide latitude to impose conditions consistent with the goal of probation: rehabilitation of the defendant with minimal risk to the community. (Penal Code section 1202.7; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) However, the conditions must be reasonable. (Section 1203.1; see also People v. Beal (4th Dist. 1997) 60 Cal.App.4th 84, 86.) Cota argued the electronic device search condition was unreasonable because it was unrelated to future criminal conduct.

The Court explained that a condition of probation will be upheld as reasonable unless it meets all three criteria outlined in People v. Lent (1975) 15 Cal.3d 481: the condition (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.

The Fourth District determined that the electronic device search condition satisfied the first two Lent criteria because there was no relationship between electronic devices and the crime Cota pled guilty to—possession of a concealed weapon; and because using electronic devices was not inherently criminal. What remained, for the electronic device search condition to survive the Court’s review for abuse of discretion, was to determine if the condition regulated conduct that was reasonably related to future criminality.

The Fourth District noted that the California Supreme Court’s recent decision in In re Ricardo P., (2019) 7 Cal.5th 1113, expressed that the reasonableness inquiry of Lent’s third prong “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The Fourth District explained that when significant privacy interests were implicated by a probation condition (such as sweeping electronics searches without a warrant), the condition was unreasonable unless it was “proportional to achieving some legitimate end of probation.” (Id. at p. 1127.) Reasonableness required “more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.) In other words, the Fourth District explained, “to justify a burdensome condition, there must be a specific relationship—grounded in the facts of the case—between the condition and preventing future criminality.”

Here, the Court observed that under terms of his probation, Cota’s electronic devices could be searched at any time without a warrant, which implicated a significant privacy interest. As in Ricardo P., the trial court imposed the condition on a general assumption that drug users routinely negotiate drug purchases with their phones. The Court found no reference to Cota’s specific actions that would provide a rationale that would make the condition’s burden proportional to the significant privacy interest imposed by the condition. The Court explained that “[m]ere convenience in monitoring a parolee’s conduct, coupled with generic descriptions of how some people use cell phones, are not sufficient to render this burden on Cota’s privacy interests reasonable.”

The Fourth District concluded that there was no substantial and particularized justification in the record for the condition imposed upon Cota here. The Court found the electronic device search condition thus met all three Lent criteria and was therefore unreasonable.

The Fourth District struck the electronic device search condition. However, the Court considered that the factual record here might be incomplete. The Court therefore remanded to allow the trial court to craft a more narrowly tailored search condition proportionate to the burden on Cota’s privacy interest, based on additional facts that were not reflected in the record presented to the Court here.

C. Prohibiting people whom state court committed involuntarily to mental institution from bearing arms was a reasonable fit with government’s important interest in reducing gun violence.

Mai v. United States, 952 F.3d 1106 (9th Cir. 2020)

Facts: In October 1999, a Washington state court committed Plaintiff Duy Mai involuntarily for mental health treatment after he threatened himself and others. The state court determined that Plaintiff was both mentally ill and dangerous. Plaintiff’s commitment lasted more than nine months, ending in August 2000. Plaintiff was seventeen years old at the time of commitment, and his commitment spanned his eighteenth birthday. After his release, Plaintiff earned a bachelor’s degree and a master’s degree, became gainfully employed, and had two children. Plaintiff claimed in his complaint that he no longer suffered from mental illness, and he lived “a socially-responsible, well-balanced, and accomplished life.”

Although Washington state law prohibited Plaintiff from possessing a firearm, due to his involuntary commitment, he successfully petitioned a Washington state court for relief. That court found that Plaintiff had successfully managed the condition related to his commitment, no longer presented a substantial danger to himself, or the public; and the symptoms related to the commitment were not reasonably likely to recur. Accordingly, the state court conclude that the relevant state law no longer prohibited Plaintiff from possessing a firearm.

However, as a result of his involuntary commitment, federal law prohibits Plaintiff from possessing a firearm. Title 18 U.S.C. section 922(g)(4) bars individuals who have been “committed to a mental institution” from possessing firearms.[3] Involuntary commitments are consistent with due process only when the individual is found to be both mentally ill and dangerous. Foucha v. Louisiana, 504 U.S. 71, 80 (1992).

After he was denied the purchase of a firearm because of Section 922(g)(4), Plaintiff filed an action in 2017 alleging federal agencies violated his Second Amendment right to bear arms[4] by prohibiting him from possessing firearms.

The District Court granted the government’s motion to dismiss the complaint for failure to state a claim. The District Court held that Section 922(g)(4) was categorically constitutional under the Second Amendment and, alternatively, that Section 922(g)(4) satisfied intermediate scrutiny. Plaintiff then sought leave to amend the complaint, which the District Court denied as futile. Plaintiff appealed.

Held: The Ninth Circuit Court of Appeals considered whether, as Plaintiff argued, the Second Amendment required that Plaintiff be allowed to possess firearms regardless of his earlier involuntary commitment. The Court explained that the “Second Amendment protects the right to keep and bear arms for the purpose of self-defense.” McDonald v. City of Chicago, 561 U.S. 742, 749-50 (2010). However, the Supreme Court’s recognition of the Second Amendment right did not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill….” District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008); those prohibitions are “presumptively lawful.” Heller, 554 U.S. at 627 n.26.

The Ninth Circuit explained that, applying the lessons from Heller and McDonald, the Ninth Circuit had adopted a two-step inquiry for assessing whether a law violates the Second Amendment. United States v. Torres, 911 F.3d 1253, 1258 (9th Cir. 2019). “This test ‘(1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.’“ Id. (quoting United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)). The Court first assumed, without deciding, that Section 922(g)(4) burdened Second Amendment rights.

The Court next determined the appropriate level of scrutiny to apply, which depends “on (1) how close the law comes to the core of the Second Amendment right and (2) the severity of the law’s burden on the right.” Id., at 1138 (internal quotation marks omitted). The Court explained that “there has been near unanimity in the post-Heller case law that, when considering regulations that fall within the scope of the Second Amendment, intermediate scrutiny is appropriate.” Torres, 911 F.3d at 1262 (internal quotation marks omitted). The Court found that Section 922(g)(4) burdened, not the public at large, but only a narrow class of individuals who are not at the core of the Second Amendment—those previously involuntarily committed.[5] The Court therefore held that, having assumed (without deciding) that Section 922(g)(4)’s prohibition burdened Second Amendment rights, intermediate scrutiny applied. The Ninth Circuit then applied intermediate scrutiny to Section 922(g)(4).

The Court explained that to satisfy intermediate scrutiny, the government’s statutory objective must be “significant, substantial, or important,” and there must be a “reasonable fit” between the challenged law and that objective. Silvester v. Harris, 843 F.3d 816, 821-22 (9th Cir. 2016) (internal quotation marks omitted).

The Ninth Circuit concluded that the government’s “unquestionably important” interest in preventing suicide[6] and “[t]he legitimate and compelling state interest in protecting the community from crime[7] supported Section 922(g)(4)’s ban on the possession of firearms by those who were involuntarily committed to a mental institution. The Ninth Circuit agreed with the Sixth Circuit that the two interests “are not only legitimate, they are compelling.”[8]

The Ninth Circuit noted that “Congress’ intent in enacting [Section] 922(g) and [related laws] was to keep firearms out of the hands of presumptively risky people.”[9] The Court explained: “Accordingly, although Section 922(g)(4)’s prohibition takes effect as a result of a past event, the statute ‘target[s] a present danger, i.e., the danger posed by [those who previously have been involuntarily committed to a mental institution] who bear arms.’ Vartelas v. Holder, 566 U.S. 257, 271 [](2012) (emphasis added).”

Moreover, the Court found that scientific evidence supported the congressional judgment that those who have been committed involuntarily to a mental institution still pose an increased risk of violence even many years after their release from commitment. The Court observed that some studies reported a suicide risk 39 times than that expected for those involuntarily committed, and other studies confirmed that suicide risk remained extremely high for those with a history of mental illness, even when studies continued beyond a decade after treatment.

The Court determined that Section 922(g)(4) was a reasonable fit for the government’s important interests. The Court found that Congress reasonably concluded that restricting firearms from persons with an increased risk of violence advanced the goal of reducing gun violence. The Court also explained that Section 922(g)(4) was more narrowly tailored than other lifetime prohibitions that the Court had previously upheld, such as Section 922(g)(1)’s prohibition as to felons, both violent and non-violent.

The Court therefore concluded that Section 922(g)(4)’s continued application to plaintiff did not violate the Second Amendment. The Court accordingly affirmed the District Court’s dismissal of the action.

D. Defendant’s motion to suppress blood test results properly denied because defendant voluntarily consented to test after receiving admonitions and did not object or resist.

People v. Lopez, 46 Cal. App. 5th 317 (3rd Dist. 2020)

Facts: In September 2013, Rocklin police detained Sharon Darlene Lopez after observing her driving. Officer Evan Adams, who took over the investigation for the detaining officer, observed Lopez’s unsteady gait, constricted pupils, and slurred speech. He conducted field sobriety tests that indicated she was impaired, but a preliminary alcohol screening device indicated an absence of alcohol. The officer believed she was under the influence of controlled substances, rather than alcohol. He arrested her and transported her to the county jail.

According to the officer’s trial testimony, he informed Lopez that because she was under arrest for a DUI, and the officer believed it was a controlled substance DUI, she was required by law to submit to a blood test. However, the officer did not inform Lopez that she had a right to refuse the blood test.

The officer said that Lopez did not object or refuse at any point to the blood test, including after the phlebotomist arrived to take the blood, and that the blood was taken with Lopez’s cooperation. Although the officer acknowledged he never explicitly asked for Lopez’s consent to the blood draw, the officer took her lack of refusal or resistance at any point as giving consent to the draw. The officer expressed that if Lopez had refused, he would have obtained a warrant and performed a forced blood draw. Asked what other signs he would look for to determine whether the suspect consented if the suspect did not say, “I give consent.” the officer replied that he would “look for someone in any way” to indicate they didn’t want to do the blood draw, and that he would take such indication as a refusal, requiring him to obtain a warrant.

The People charged Lopez with one misdemeanor count of driving under the influence of a controlled substance. Lopez moved to suppress evidence pursuant to Penal Code section 1538.5, arguing that her blood sample, among other matters, was drawn without her consent or a warrant in violation of the Fourth Amendment. She testified that she did object and that she was physically forced to give the blood sample.

The trial court denied the suppression motion, finding the officer’s testimony to be more credible and concluding Lopez consented to the blood draw. Lopez appealed to the court’s appellate division. The appellate division affirmed the trial court’s order denying suppression and denied Lopez’s request to have the matter transferred to the California Third District Court of Appeal. However, the Third District granted Lopez’s petition for transfer. The superior court stayed proceedings pending the Third District’s resolution of the appeal.

Held: The Third District Court of Appeal explained that the Fourth Amendment protects the “right of the people to be secure in their persons … against unreasonable searches” and provides that “no warrants shall issue, but upon probable cause.” A blood draw is a search of the person. (Birchfield v. North Dakota (2016) 579 U.S. ___ [195 L.Ed.2d 560, 136 S. Ct. 2160].) However, a consensual search does not violate the Fourth Amendment “because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so.” (Florida v. Jimeno (1991) 500 U.S. 248, 250–251.)

At the time of Lopez’s arrest, the implied consent law stated that Lopez, by driving a motor vehicle, was deemed to have given her consent to chemical testing of her breath or blood if she was lawfully arrested for driving under the influence. The Court explained that the implied consent law required Officer Adams to inform Lopez that her refusal to submit to testing would result in a fine, suspension of her driver’s license, and, if she was convicted of DUI, mandatory imprisonment. The law also required Officer Adams to inform Lopez that a refusal to submit to the test could be used against her in a court of law, and that she was not entitled to have an attorney present when she decided whether to take the test or during the test. Officer Adams did not make these admonitions.

The Court explained that voluntary consent to a blood test required under the implied consent law satisfies the Fourth Amendment. (People v. Harris (4th Dist. 2015) 234 Cal.App.4th 671, 685.) The Court explained that “‘rather than determine whether “implied consent” to a chemical test satisfies the Fourth Amendment, we must determine whether submission to a chemical test, after advisement [or lack of advisement] under the implied consent law, is freely and voluntarily given and constitutes actual consent.’ (Harris, supra, 234 Cal.App.4th at p. 686).”

The Court noted that “consent need not be express. It may be implied from the suspect’s actions. ‘[N]o words at all need be spoken: in appropriate circumstances, consent to enter may be unmistakably manifested by a gesture alone.’” (People v. James (1977) 19 Cal.3d 99, 113.) The Court noted that Officer Adams correctly instructed Lopez that she was required to undergo a blood test; that Lopez did not object or refuse to undergo the test; that she did not resist any of the officers’ directions or actions; and that she voluntarily placed her arm on the table to allow the phlebotomist to draw her blood. The Court noted that the officer testified he obtained consent and that had a suspect not done so, he would seek a warrant. The trial court considered Officer Adams’s omissions of the implied consent law’s admonitions, and it found Lopez nonetheless voluntarily consented to the blood draw.

The Third District concluded that these facts, “seen in light of the implied consent law and the regulatory scheme to prevent drunk driving, are substantial evidence supporting the trial court’s determination that, under the totality of the circumstances, Lopez consented to her blood test.” Accordingly, the Third District affirmed the trial court’s order denying Lopez’s motion to suppress.

E. 42 U.S.C. section 1983 action requires plausible facts showing sufficient indicia of officer’s display of state authority to conclude they acted in official capacity; also plaintiff did not plausibly allege that County’s inaction reflected deliberate indifference to her Fourteenth Amendment right to bodily integrity.

Hyun Ju Park v. City & Cnty. of Honolulu, 952 F.3d 1136 (9th Cir. 2020)

Facts: While Hyun Ju Park was working as a bartender at a Honolulu sports bar late one night, three off-duty police officers employed by the Honolulu Police Department stopped at the bar for drinks. After consuming seven beers over the course of two hours, one of the officers, Anson Kimura, decided to inspect his firearm, which the department had authorized him to carry. The other two officers watched as their intoxicated colleague attempted to load his already-loaded firearm. Kimura’s firearm accidentally discharged, and a bullet struck Park. She suffered serious, life-threatening injuries as a result.

Park filed an action pursuant to 42 U.S.C. section 1983 against the three officers and the City and County of Honolulu alleging that defendants violated plaintiff’s substantive due process right to bodily integrity under the Fourteenth Amendment. Park alleged that the Kimura’s reckless handling of his firearm exhibited deliberate indifference to her personal safety, and that two other off-duty police officers were liable for failing to intervene to stop the dangerous conduct. Park also alleged that Police Department policies or customs caused her injuries. She settled her claims against Kimura, and the District Court granted the remaining defendants’ motion to dismiss. Park appealed.

Held: The Ninth Circuit Court of Appeals first addressed Park’s Section 1983 claim against the two off-duty officers. The Court explained that to state a Section 1983 claim, Park had to allege that she suffered the deprivation of a federally protected right and that “the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The Ninth Circuit explained that it had a three-part test for determining when a police officer, although not on duty, had acted under color of state law. The officer must have: (1) acted or pretended to act in the performance of his official duties; (2) invoked his status as a law enforcement officer with the purpose and effect of influencing the behavior of others; and (3) engaged in conduct that “related in some meaningful way either to the officer’s governmental status or to the performance of his duties.” Anderson v. Warner, 451 F.3d 1063, 1068-69 (9th Cir. 2006) (internal quotation marks omitted).

The Court noted that both officers were off-duty and dressed in plain clothes, drinking and socializing at the bar in their capacity as private citizens. Moreover, they never identified themselves as officers, displayed their badges, or specifically associated their actions with their law enforcement duties. The Court thus held that because the two off-duty officers did not act or purport to act in the performance of their official duties, they were not acting under color of state law. The Court therefore affirmed the District Court’s dismissal of Park’s claims against the two officers.

The Ninth Circuit next addressed Park’s Section 1983 claim against the County, brought pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). Park asserted that the County was liable because the Chief of Police failed to amend a Honolulu Police Department policy to prohibit officers from carrying firearms whenever they consumed alcohol in any amount.

The Ninth Circuit explained that a municipality may be held liable as a “person” under Section 1983 when it maintains a policy or custom that causes the deprivation of a plaintiff’s federally protected rights. Monell, 436 U.S. at 694. To state such a claim, a plaintiff must allege either that (1) “a particular municipal action itself violates federal law, or directs an employee to do so”; or (2) the municipality, through inaction, failed to implement adequate policies or procedures to safeguard its community members’ federally protected rights. Board of Commissioners of Bryan County v. Brown, 520 U.S. 397, 404, 407-08 (1997); see also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012).

The Ninth Circuit explained that when, as Park did here, a plaintiff pursues liability based on a failure to act, the plaintiff must allege that the municipality demonstrated deliberate indifference to the violation of her federally protected rights. Tsao, 698 F.3d at 1143. The Court explained that deliberate indifference was a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action. The standard may be met if the policy is obviously, facially deficient; or if not, a plaintiff must ordinarily point to a pattern of prior, similar violations of federally protected rights, of which the relevant policymakers had actual or constructive notice.

The Court determined Park had not plausibly alleged that the Chief of Police had actual or constructive notice that his inaction would likely result in the deprivation of her federally protected rights. The Court noted that Park did not plausibly allege that the Chief of Police was aware of prior incidents in which the off-duty officers mishandled their firearms while drinking before the incident here occurred. The Court also rejected Park’s assertion that the Chief of Police failed to implement mandatory whistleblowing policies, which would have rooted out a culture of silence; Park provided no details on such alleged matters. The Court concluded that plaintiff had not plausibly alleged that the Chief of Police had actual or constructive notice that his inaction would likely result in the deprivation of plaintiff’s federally protected rights. The Court thus found the Park had not met the stringent standard for her claim against the County for deliberate indifference to her Fourteenth Amendment right to bodily integrity. The Ninth Circuit accordingly affirmed the District Court’s dismissal of Park’s Section 1983 claim against the County.

Concurring in part and dissenting in part, a judge joined the majority opinion as applied to the two off-duty officers and agreed that the Section 1983 claims against them should be dismissed for failure to plausibly allege that they were acting under color of law. However, this judge disagreed with the majority’s analysis of Park’s Monell claim against the County. The judge noted that Kimura’s repeated engagement in drunken and dangerous weapons handling occurred in the presence of other HPD officers, and that this put the County on at least constructive notice of the substantial risk of harm. The judge maintained that Park should be given leave to amend to potentially allege additional facts that “would have made out a more compelling case for constructive or actual notice.”

F. While unoccupied running car warranted investigation, it did not reasonably suggest crime or emergency was in progress to justify officers’ warrantless search.

People v. Smith, 2020 Cal. App. LEXIS 204 (4th Dist. Mar. 12, 2020)

Facts: In December 2014, a Palm Springs Police Department police officer and his partner were dispatched to a home following a call from a concerned citizen who reported that an unoccupied running car had been in the driveway of a residence for about 30 minutes. After the officer and his partner arrived, they observed that the unoccupied car was running, the windows were up and foggy, the lights were on, and determined that a car rental company owned the vehicle.

The officer became concerned that a person inside the home might be in distress or that criminal activity was afoot. The officer heard no noise inside the house. The officer rang the doorbell several times, and the officer or his partner also knocked on the door. The officers waited about 30 to 60 seconds for someone to answer the door, but received no response.

Moving around the exterior of the home, the officer noticed a second door about 10 feet away from the front door, which the officer described as “an interior-type door.” The officer did not know that the door led to a casita[10] that lacked access to the front door. The officer moved the handle without knocking. Finding the door unlocked, the officer opened the door and announced “police.” As the door opened, the officer saw an individual, who he knew to be a felon and not a resident of this home, lying on the floor looking back at him. This caused the officer to believe that crime was afoot. During trial, the officer testified that after stepping into the room he saw Skyler Damon Smith, another individual who he knew had a felony conviction, drug paraphernalia and what appeared to be methamphetamine in plain view.

The Riverside County District Attorney filed an information charging Smith with several drug possession and firearm counts. The trial court denied Smith’s suppression motion relating to the search of his casita. A jury found Smith guilty and the trial court sentenced Smith to 10 years eight months in prison. Smith appealed the denial of his suppression motions. The California Fourth District Court of Appeal affirmed, but the California Supreme Court granted review and transferred the matter back to the Court of Appeal for reconsideration.

Held: The Fourth District Court of Appeal first explained that the Fourth Amendment to the United States Constitution prohibits the government from conducting unreasonable searches and seizures of private property. (U.S. Const., 4th amend.; Arizona v. Gant (2009) 556 U.S. 332, 338; People v. Macabeo (2016) 1 Cal.5th 1206, 1213.) Warrantless searches “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted.)

The Court of Appeal observed that under the emergency aid exception, “police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” (Brigham City v. Stuart (2006) 547 U.S. 398, 400; People v. Troyer (2011) 51 Cal.4th 599, 606.) Moreover, “the exigent circumstances exception applies to situations requiring prompt police action. These situations may arise when officers are responding to or investigating criminal activity.” (People v. Ovieda (2019) 7 Cal.5th 1034, 1042.)

The Court considered the question of whether exigent circumstances justified the officer’s warrantless search. The Court explained that exigent circumstances are defined as “‘“‘an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.’”‘” (Id. at p. 1041.) Exigent circumstances include situations where “an entry or search appears reasonably necessary to render emergency aid, whether or not a crime might be involved.” (Id. at pp. 1041–1042.)

The Court explained that the emergency aid exception “‘require[s] that articulable facts support a reasonable belief that an emergency exists.’ [(Id. at p. 1048.)] It is not enough that officers seek to rule out ‘the possibility that someone … might require aid.’ (Id. at p. 1047.)” “‘[T]he test … [is] whether there was “an objectively reasonable basis for believing” that medical assistance was needed, or persons were in danger … .’” (Michigan v. Fisher (2009) 558 U.S. 45, 49.)

Here, the Court found no evidence supported a conclusion that anything was amiss inside the residence. The officers observed an unoccupied running vehicle in a residential driveway at night and what appeared to be an unoccupied dark residence with the porch light on and front door locked. No one responded to the doorbell or knocks at the door and the officer could not see or hear anything inside the house. The Court observed that the officer articulated no facts reasonably suggesting that someone inside the residence might be having a medical emergency. The Court concluded that the facts known to the officer were insufficient to provide him with “‘an objectively reasonable basis for believing’ that medical assistance was needed, or persons were in danger” such that a warrantless search of the residence was justified by the emergency aid exception. Thus, the emergency aid exception did not apply.

With regard to the exigent circumstances exception, the Fourth District observed that “[a] burglary in progress may constitute an ‘exigent circumstance,’ as that phrase is used in Fourth Amendment jurisprudence.” (People v. Lujano (2014) 229 Cal.App.4th 175, 183.) Here, the Court found that while the unoccupied running car warranted investigation, it did not reasonably suggest a burglary in progress and justify a warrantless search. The Court noted that the neighbor who reported the running car in the driveway did not see anyone fleeing the residence, or state that the neighborhood had a burglary problem. The lit porch light, locked front door, and dark interior suggested that the home was occupied, but that the occupants were not home. Moreover, an overview of the residence’s exterior did not reveal any open doors or windows, flashlight beams in the home, or anything wrong. The Count concluded that no articulable facts existed to create a nexus between any suspected criminal activities and the residence. (See People v. Hernandez (2nd Dist. 1994) 30 Cal.App.4th 919.)

The Court thus concluded that, like the emergency aid exception, the exigent circumstances exception did not justify the warrantless entry. Accordingly, the Fourth District Court of Appeal reversed on these matters, and remanded with directions that the trial court resentence Smith.


Civil FEHA actions require exhaustion of administrative remedies even where defendant had actual notice of complaint and opportunity to participate in administrative processes.

Alexander v. Cmty. Hosp. of Long Beach, 46 Cal. App. 5th 238 (2nd Dist. 2020)

Facts: Judy Alexander, Johann Hellmannsberger, and Lisa Harris worked as nurses in the behavioral health unit of Community Hospital of Long Beach (“hospital”). All received good reviews. In 1989, two corporations were founded to take over the operations of the hospital’s psychiatric unit. The first corporation, Memorial Psychiatric Health Services (“MPHS”), was founded to run the hospital’s locked mental health ward. The hospital contracted with MPHS to operate its behavioral health unit. MPHS provided administrative services for the unit and employed and managed its director, Keith Kohl. Kohl’s direct supervisor was MPHS’s vice-president of operations.

The second corporation founded in 1989, the Memorial Counseling Associates Medical Group (“MCA”), supplied physicians for patients in the ward. The hospital separately contracted with MCA to provide physicians for the behavioral health unit. Personnel issues involving employees other than Kohl or the physicians were managed by Valerie Martin, the hospital’s human resources director.

Kohl discriminated in favor of male staff—particularly gay men—with respect to scheduling, assignments and promotions; rewarded male employees with gift certificates based on their attire; and regularly used sexually explicit language that favored homosexuality and denigrated heterosexuality. Alexander complained informally several times about Kohl, including once to Martin. Alexander’s complaint to Martin was a few weeks prior to an April 2009 patient incident that involved Alexander, Hellmannsberger, and Harris.

Five days after the incident with the patient, Kohl, Martin, and Tammy Alvarez, the hospital’s chief nursing officer, terminated Alexander ostensibly for abusing the patient by placing the patient in physical restraints without a physician’s order. Kohl, Martin, Alvarez, and Anthony Pace (the Behavioral Health Unit’s clinical coordinator) offered to let Hellmannsberger keep his job if he would corroborate that Alexander had put the patient in restraints. Martin, Alvarez, and Kohl proposed the same to Harris. Hellmannsberger and Harris each refused, and were fired.

The hospital told licensing authorities about the patient incident. Although the nurses found new jobs soon after their termination, they lost the new jobs a year later when the State of California filed criminal charges against them for patient abuse for the patient incident. The nurses were acquitted of the charges.

Alexander, Hellmannsberger and Harris filed administrative complaints with the Department of Fair Employment and Housing (“DFEH”) against the hospital,[11] Kohl, and Pace. The nurses alleged gender and sexual orientation discrimination, and retaliation in violation of the California Fair Employment and Housing Act (Government Code section 12900 et seq.; “FEHA”). The nurses later added MCA as an additional potential defendant in their subsequent complaint. The nurses amended their civil complaint to name MPHS as a Doe defendant. However, the nurses never filed any administrative complaint against MPHS. A jury found that the hospital and MPHS created a hostile work environment and wrongfully discharged the three nurses based on their opposition to Kohl’s harassment, using a pretext of patient abuse. The jury awarded the nurses past and future economic and noneconomic damages, and the trial court entered judgment accordingly. MPHS appealed after the trial court denied MPHS’s motion for judgment notwithstanding the verdict.

Held: The California Second District Court of Appeal held that the nurse plaintiffs failed to exhaust their administrative remedies, in that they failed to mention MPHS in their administrative complaints. Thus, MPHS could not be held liable for the plaintiffs’ FEHA claims

The Court observed that FEHA makes it an unlawful employment practice for an employer to harass or discriminate against an employee based on the employee’s sexual orientation, to fail reasonably to investigate a complaint of harassment or discrimination, or to retaliate against an employee for making such a complaint. (Government Code section 12940(a), (h), (j) & (k).)

The Court explained that “[a]ny person claiming to be aggrieved by an alleged unlawful practice may file with the [DFEH] a verified complaint, in writing, that shall state the name and address of the … employer … alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department.” (Government Code section 12960(c), italics added.) The aggrieved person must exhaust this administrative remedy before bringing a civil FEHA action.[12]

The Court noted that “to bring a civil lawsuit under the FEHA, the defendants must have been named in the caption or body of the DFEH charge.”[13] Here, the plaintiffs did not mention MPHS in their FEHA complaint. The Court concluded that this constituted a failure to exhaust their administrative remedies against MPHS and precluded the plaintiffs from bringing a civil FEHA action against MPHS.[14] The Court found FEHA’s mandatory statutory language where an unnamed defendant receives actual notice of a FEHA complaint precluded the nurse plaintiffs’ argument for an exception to the rule. The Court accordingly reversed the judgment against MPHS and ordered a new judgment be entered in its favor.


A material change in circumstances may permit a new moratorium on marijuana dispensaries following challenge under Elections Code section 9145.

Cnty. of Kern v. Alta Sierra Holistic Exch. Serv., 46 Cal. App. 5th 82 (5th Dist. 2020)

Facts: In 2009, the Board of Supervisors (“Board”) of the County of Kern (“County”) adopted an ordinance allowing medical marijuana dispensaries in commercially zoned areas, treating them similar to pharmacies. In 2011, the County adopted a new ordinance, effectively banning medical marijuana dispensaries in the County and declaring them a public nuisance. The following month, a valid protest petition was received by the Board protesting the recently enacted dispensary ban ordinance. Elections Code section 9145 provides that when a county board of supervisors receives a valid referendum petition protesting the adoption of an ordinance, the board must either “entirely repeal the ordinance” or submit it to the voters.

In response to the valid petition, the Board in February 2012 adopted a repeal ordinance, which not only repealed the protested 2011 ban ordinance, but also effectively repealed the 2009 ordinance allowing medical marijuana dispensaries in commercially zoned areas.

In April 2016, the Fifth District interpreted “the phrase ‘entirely repeal the ordinance’ [in Elections Code section 9145] to mean that a [board] must (1) revoke the protested ordinance in all its parts and (2) not take additional action that has the practical effect of implementing the essential feature of the protested ordinance.” (County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 308 (“T.C.E.F.”).) The Fifth District in that case held the repeal of the 2009 ordinance to be invalid and concluded that the repeal of the 2009 ordinance was, in practical effect, a reenactment of the ban on dispensaries contained in the 2011 protested ordinance. (Id. at pp. 308, 326.) Accordingly, the Board’s repeal of the 2009 ordinance violated Section 9145 and, as a result, the Fifth District in T.C.E.F. concluded the 2009 ordinance remained in effect. (T.C.E.F., at p. 308.)

Before the Fifth District’s T.C.E.F. decision became final, the County in May 2016 adopted an ordinance that placed a moratorium on the establishment of new medical marijuana dispensaries. The ordinance was adopted as an urgency measure and the Board’s findings constituting its declaration of urgency were set forth in the Kern County Ordinance Code (“KCOC”). The day before the County’s adoption of this ordinance, Alta Sierra Holistic Exchange Service and their incorporator (collectively, “defendants”) obtained a seller’s permit. The defendants began operating a medical marijuana dispensary sometime after the County adopted the urgency measure ordinance.

In October 2016, the County filed a nuisance abatement action against defendants. County alleged that sometime after the County adopted the May 2016 moratorium ordinance, the defendants began operating a marijuana dispensary, thereby violating the moratorium. The trial court concluded that the defendants’ marijuana dispensary was a public nuisance. The defendants were prohibited from operating a marijuana dispensary on the property and from leasing or otherwise permitting a dispensary to occupy the property. The defendants appealed.

Held: The California Fifth District Court of Appeal had already determined in T.C.E.F. that the 2012 repeal ordinance wrongly effected the repeal of the 2009 ordinance by effectively “implementing the essential feature of the protested ordinance.” (T.C.E.F., at p. 308.) The Fifth District here observed that the defendants’ appeal raised the legal question of how long a board of supervisors must wait under Elections Code section 9145 before reenacting the essential feature of the protested ordinance. Noting that the constitutional provisions addressing the referendum power, the text of Section 9145, and published judicial decisions did not provide a direct answer for referenda at the county level, the Court considered the matter. The Court resolved the question by interpreting Section 9145 to mean a board of supervisors could reenact the essential feature of the repealed ordinance after there had been a material change in circumstances. The Court explained that a change in circumstances was material if an objectively reasonable person would consider the new circumstances significant or important in making a decision about the subject matter of the ordinance.

The Court determined the relevant period to evaluate whether a material change had occurred to be between the February 2012 when the repeal ordinance was adopted and May 2016, when the urgency measure ordinance imposing a moratorium on new dispensaries was adopted. The Court noted several developments that indicated a material change in circumstances during that period.

In November 2016, California voters passed Proposition 64 which legalized adult, recreational use of marijuana and reduced the criminal penalties for various offenses involving marijuana, including its cultivation and possession for sale. After the passage of Proposition 64, the Governor signed into law the Medicinal and Adult-Use Cannabis Regulation and Safety Act[15] (“MAUCRSA”). MAUCRSA created one regulatory system for both medicinal and adult-use (i.e., recreational) cannabis, and became effective on June 27, 2017. The new act explicitly authorized local jurisdictions “to completely prohibit the establishment or operation of one or more types of businesses licensed under [MAUCRSA] within the local jurisdiction.”[16] MAUCRSA provides that no application for a state license shall be approved if that approval “will violate the provisions of any local ordinance or regulation adopted in accordance with Section 26200.”[17] The Court also noted that the Board in May 2016 had new information that it did not have in February 2012, including the occurrence of criminal activity at or near the dispensary, traffic safety, underage use of marijuana, and hospitalization related to marijuana use.

The Court thus concluded that the totality of the changes constituted a material change relevant to County’s regulation of marijuana dispensaries. The Court stated that legalization of recreational use of marijuana greatly increased the potential demand and, thus, the number of dispensaries that might open if authorized. In turn, the Board could reasonably infer a larger number of dispensaries would increase the volume of criminal activity, traffic incidents and hospitalizations involving marijuana.

The Fifth District thus concluded that material changes occurred before the Board enacted the May 2016 ordinance. The Court found that the Board did not violate Section 9145 when it enacted the May 2016 moratorium on new dispensaries or subsequently banned dispensaries. Accordingly, the ordinance banning dispensaries was enforceable.


A. Felony conviction for misuse of personal identifying information under Penal Code section 530.5(a) may not be reduced to misdemeanor shoplifting under Proposition 47.

People v. Jimenez, 9 Cal. 5th 53 (2020)

Facts: In June 2016, defendant Miguel Angel Jimenez entered Loans Plus, a commercial check-cashing store in Oxnard, on two occasions to cash a check from OuterWall, Inc., made payable to himself. The first check was made out for $632.47, and the second, $596.60. Each contained OuterWall’s personal identifying information in the form of an account number. On both occasions, Loans Plus was open for business. And on both occasions, OuterWall had not issued the checks in Jimenez’s name, nor did Jimenez have permission to possess, issue, or use the checks.

The People charged Jimenez with two felony counts of misusing personal identifying information in violation of Penal Code section 530.5(a), which prohibits “willfully obtain[ing] personal identifying information” of another person “and us[ing] that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person.” (Section 530.5(a).) The jury instructions declared the unlawful purpose for which Jimenez used OuterWall’s account information: “unlawfully obtaining or attempting to obtain money in the form of cash in exchange for a presented check without the consent of the other person.” The jury convicted Jimenez of both counts.

Jimenez moved to reclassify his felony convictions to misdemeanors under Proposition 47: The Safe Neighborhoods and Schools Act. Approved by California voters in November 2014, Proposition 47 was intended to decrease the number of people in prison for nonviolent crimes, and reclassified certain drug- and theft-related offenses from felonies or “wobblers” to misdemeanors to achieve this purpose. One change made by Proposition 47 was to add Section 459.5 to the Penal Code, thereby establishing a new misdemeanor shoplifting offense. Section 459.5 prohibits entering a commercial establishment “with intent to commit larceny” while the establishment is open during business hours, and where the value of the property taken or intended to be taken is $950 or less. (Section 459.5(a).) The section also dictates that any “act of shoplifting … shall be charged as shoplifting,” and that “[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.” (Section 459.5(b).) This prohibition applies only to “burglary or theft” offenses. (Ibid.)

Jimenez relied on the Supreme Court’s recent decision in People v. Gonzales (2017) 2 Cal.5th 858 to support his bid for reclassification, in which the Court held that the shoplifting statute applied to an entry with intent to commit nonlarcenous theft. Like Jimenez, the defendant in Gonzales had entered a commercial establishment and cashed two checks containing another person’s bank account information. Because Jimenez committed essentially the same conduct as Gonzales, Jimenez argued his conduct, too, constituted misdemeanor shoplifting under Section 459.5(a). The trial court granted Jimenez’s motion, and the People appealed. The Court of Appeal affirmed, relying on the similarity of Jimenez’s conduct and that of the Gonzales defendant. The District Attorney filed a petition for review.

Held: The Supreme Court of California granted review to determine whether a felony conviction for misuse of personal identifying information can be reduced to misdemeanor shoplifting under Proposition 47. The Court concluded that Section 459.5, the misdemeanor shoplifting provision, did not encompass misuse of identifying information. The Court held that the preclusive language of Section 459.5(b)—that “[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting,” and “[n]o person who is charged with shoplifting may also be charged with theft or burglary of the same property”—applied only as to theft or burglary offenses. Section 530.5(a), the section for which Jimenez was convicted of a felony, did not define such an offense.

The Court explained that a conviction under Penal Code section 530.5(a) required proof “(1) that the person willfully obtain[ed] personal identifying information belonging to someone else; (2) that the person use[d] that information for any unlawful purpose; and (3) that the person who use[d] the personal identifying information d[id] so without the consent of the person whose personal identifying information [was] being used.”[18]

The Court noted that Section 530.5 makes no mention of theft in its text, nor contained any requirement, “central to the crime of theft[,] that the information be stolen at all,”[19] or that the victim’s information was taken with “the intent to permanently deprive the owner of its possession.”[20] The Court observed that, by its very terms, Section 530.5(a)’s offense of misuse of personal identifying information could be accomplished by acquiring the information with valid consent, using it for an unlawful purpose, and returning it.

The structure and history of Section 530.5, the Supreme Court stated, reinforced this understanding that “[t]he gravamen of the … offense is the unlawful use of a victim’s identity.”[21] The Court noted that the Legislature enacted Section 530.5 in 1997 as part of many changes to California’s Consumer Credit Reporting Agencies Act, and that before Section 530.5 took effect, law enforcement agencies generally considered the defrauded business entity to be the victim, not the person whose identity was stolen so that the fraud could be committed. The Court also observed that Section 530.5 resided in the chapter of the Penal Code titled “False Personation and Cheats,” rather than the chapter titled “Larceny.” Thus, the Court concluded from the language, structure, and history of the section that Section 530.5 was not a theft offense, but a unique crime.

The Supreme Court explained that Jimenez centered his argument on the similarity between his conduct and that of the defendant in Gonzales. However, the Court found that this argument presumed a defendant’s conduct, not his crime of conviction, was what Proposition 47 sought to reclassify. Section 459.5(b) provides that “[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.” The Court explained that the trigger for the bar in Section 459.5(b) was not only whether a defendant’s course of conduct included an act of shoplifting (see subdivision (a) of the section), but also whether the charged crime is burglary or theft of the same property. The Court clarified that conduct did impact whether a defendant “may … be charged with burglary or theft of the same property,” but not on whether Section 530.5 created a “theft” offense. (Section 459.5 (b).) That Jimenez committed shoplifting in the course of identity theft, the Court explained, did not alter the fact that he committed identity theft.

Thus, the Supreme Court of California found that Section 530.5 criminalized the willful use of someone’s personal identifying information for an unlawful purpose, not an unlawful taking. It was not a theft offense because criminal liability pivoted on how the information was used rather than how it was acquired. Because Section 459.5(b) did not encompass misuse of identifying information, the Court determined that Jimenez’s conviction for misuse of identifying information was not subject to reclassification as misdemeanor shoplifting, and that the Court of Appeal erred in holding otherwise. The Supreme Court accordingly reversed and remanded to the Court of Appeal with instructions to send the case back to the trial court for sentencing.

B. Social media providers may defend against criminal subpoenas by either establishing an unjustified burden to produce or that the information is available by other means.

Facebook, Inc. v. Superior Court, 46 Cal. App. 5th 109 (1st Dist. 2020)

Facts: The federal Stored Communications Act (the “Act”; 18 U.S.C. section 2701 et seq.) prohibits electronic communication service providers from “knowingly divulg[ing]” the contents of a user communication. (Section 2702(a)(1)–(2), (b)–(c).) Disclosure is authorized if it is made “with the lawful consent of the originator or an addressee or intended recipient of such communication.” (Section 2702(b)(3).) Other exceptions are provided for disclosures made to government entities pursuant to a warrant, court order, or a subpoena. (Section 2703(a)–(c).)

Real parties in interest Derrick D. Hunter and Lee Sullivan (“defendants” or “Defendants”) were indicted on murder, weapons, and gang-related charges stemming from a June 2013 drive-by shooting. Each defendant served a subpoena duces tecum on one or more of the petitioners, social media providers Facebook, Inc., Instagram, LLC, and Twitter, Inc. (collectively, “Providers”), seeking both public and private communications from the murder victim’s and a prosecution witness’s accounts. Providers moved to quash the subpoenas on the ground that the Act barred them from disclosing the communications without user consent. The trial court denied Providers’ motion. The California First District Court of Appeal concluded the Act barred enforcement of defendants’ subpoenas and rejected defendants’ arguments that the Act, as applied pretrial, violated their rights under the Fifth and Sixth Amendments to the federal Constitution.

The California Supreme Court reviewed, concluding that the Act’s lawful consent exception permitted providers to disclose communications configured by a user to be public, but not necessarily those configured as private. The Supreme Court also concluded the pretrial subpoenas were unenforceable under the Act “with respect to communications addressed to specific persons, and other communications that were and have remained configured by the registered user to be restricted.” Because production of public communications could make unnecessary the need for additional communications, and because the trial court did not develop an adequate record on alternative ways to obtain communications, the Supreme Court declined to address the parties’ constitutional arguments and remanded the matter to the trial court. The Supreme Court stated that it was not clear “that the trial court made a sufficient effort to require the parties to explore and create a full record concerning defendants’ need for disclosure from providers—rather than from others who may have access to the communications. Consequently, at this point it is not apparent that the court had sufficient information by which to assess defendants’ need for disclosure from providers when it denied the motions to quash ….” Facebook, Inc. v. Superior Court (Hunter), 4 Cal. 5th 1245, 1275-1276 (2018).

On remand, the trial court concluded that the Act must yield to an accused’s due process and confrontation rights, denied the Providers’ renewed motions to quash, and ordered providers to produce the victim’s and witness’s private[22] communications for in camera review (“May 1 order”). Providers petitioned for writ of mandate for a stay of the production order and to quash the subpoenas.

Held: The California First District Court of Appeal observed that the Supreme Court had declined to address the same constitutional arguments as at issue here because the conflict potentially could be obviated by providers’ production of public communications or by obtaining private communications through alternative means. (Id. at pp. 1275–1276.) As the Supreme Court noted, “any third party or entity—including a social media provider—may defend against a criminal subpoena by establishing that, for example, the proponents can obtain the same information by other means, or that the burden on the third party is not justified under the circumstances.” (Id. at p.1290, italics added.)

The Supreme Court had cited City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134, which discusses factors a trial court must consider and balance when deciding whether a defendant may obtain discovery of police reports that might lead to third party culpability evidence. The First District concluded that the trial court did not follow the Supreme Court’s instructions to consider all the relevant factors and, instead, appeared focused only on defendants’ justification for seeking the private communications. In particular, the trial court did not explore options for obtaining materials from other sources prior to issuing its order.

The Court of Appeal rejected as speculation a defendant’s assertion that it would be futile to try to obtain the communications from a witness because the witness would invoke the Fifth Amendment privilege against self-incrimination. The First District also determined that the trial court made no effort to evaluate the defendants’ continuing need for private content after the public content was produced.

The First District found the record did not support the trial court’s finding of good cause for production of the private communications for in camera review. The First District thus concluded that the trial court abused its discretion. Accordingly, the First District granted Providers’ petition and directed the trial court to quash the subpoenas.

C. Penal Code section 10851 violations do not bar Proposition 47 relief for temporary deprivations of possession of a vehicle from its owner.

People v. Bullard, 2020 Cal. LEXIS 1917 (Mar. 23, 2020)

Facts: In 2012, defendant Julian Micah Bullard entered a negotiated plea of guilty to a felony charge of violating Vehicle Code section 10851, which criminalizes the offense of unlawfully taking or driving a vehicle. After staying overnight as his girlfriend’s residence, Bullard took her car keys and drove away in her car without her permission. After talking to his girlfriend that night, Bullard returned the car to her workplace, where he was arrested. The vehicle was valued at approximately $500. Bullard was sentenced to 16 months in jail.

In 2014, voters passed Proposition 47, “the Safe Neighborhoods and Schools Act.” Codified as Penal Code section 490.2, Proposition 47 reduced felony offenses consisting of theft of property worth $950 or less to misdemeanors. Prior to the case here, the California Supreme Court had held that this theft-reduction provision applied to the subset of Section 10851 convictions that were based on obtaining a vehicle worth $950 or less by theft. (People v. Page (2017) 3 Cal.5th 1175, 1187.)

Proposition 47 also added a separate provision that established a procedure for redesignating a past felony offense as a misdemeanor if the offender had already completed his or her sentence and if he or she “would have been guilty of a misdemeanor under [Proposition 47] had this act been in effect at the time of the offense … .” (Penal Code section 1170.18(f).)

After Bullard completed his jail term, he petitioned to have his unlawful taking or driving felony conviction reduced to a misdemeanor under Section 1170.18(f). The trial court denied his petition, finding that Section 10851 was “not affected by Proposition 47.” The Court of Appeal affirmed.

The California Supreme Court granted Bullard’s petition for review but deferred briefing until after it had decided Page. After Page became final, the Supreme Court ordered briefing in the current case to consider whether the Proposition 47’s retroactive theft-reduction provision applied to Section 10851 convictions based on taking a vehicle, in the absence of proof that the defendant intended to permanently deprive the owner of possession.

Held: The Supreme Court of California explained that while liability for theft generally required that the defendant have an intent to permanently deprive the owner of possession, Section 10851 made no distinction between temporary takings and permanent ones. The provision imposed liability on any person who takes a vehicle “with intent either to permanently or temporarily deprive” the owner of possession, “whether with or without intent to steal the vehicle.” (Section 10851(a), italics added.) Section 10851, the Court added, “proscribes a wide range of conduct,” including, but not limited to, vehicle theft. (People v. Jaramillo (1976) 16 Cal.3d 752, 757.)

The Supreme Court observed that in Page, the Court had held that Proposition 47’s theft-reduction provision applied to those Section 10851 convictions based on taking a vehicle with intent to permanently deprive the owner of possession (again, provided the vehicle is worth $950 or less), but not to the nontheft offense of driving a stolen car after the theft is complete. (Page, 3 Cal.5th at p. 1187.) Page expressly postponed for future resolution the question whether “equal protection or the avoidance of absurd consequences” required extending misdemeanor treatment to a person “convicted for taking a vehicle without the intent to permanently deprive the owner of possession.” (Id. at p. 1188, fn. 5.)

The Court stated that the question to be resolved here was whether Proposition 47 required courts to draw a distinction under Section 10851 between permanent and temporary vehicle takings—granting sentencing relief to those who took vehicles permanently but denying relief to those who took vehicles temporarily. In other words, the Supreme Court asked: “Do we understand Proposition 47 to now subdivide [S]ection 10851 vehicle-taking convictions into two new categories—misdemeanor permanent takings and felony temporary ones? Or do we instead understand Proposition 47 to apply to all unlawful takings of low-value vehicles with intent to deprive the owner of possession, regardless of whether the defendant has established an intent to take the vehicle permanently?” (Italics added.)

The Supreme Court held the latter view was correct, finding the former “patently illogical.” The Court explained that when voters enacted Penal Code section 490.2, “they could not possibly have intended thereby to split the atom of the section 10851 vehicle taking into two separate crimes—permanent taking and the included offense of temporary taking—with the latter punished more harshly than the former.” “Certainly, there is no indication in the statute’s stated purpose or history that such was the voters’ intent. The stated purpose of the initiative was to focus prison spending on ‘violent and serious offenses,’ while maximizing alternatives to prison for ‘nonserious, nonviolent crime.’ (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, section 2, p. 70 (Voter Information Guide).) To that end, the measure was designed to ‘[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession.’ (Id., section 3, subd. (3), p. 70.)” The parties agreed with the Court on this view.

However, the Attorney General contended that even though a person who violates Section 10851 by committing what the Attorney General called a “pure taking” of a vehicle was eligible for Proposition 47 relief, a person who actually drove the vehicle at any point was not. The Court rejected this distinction. The Court noted that Page had held that the availability of relief under Proposition 47 turned on the distinction between taking—whether accomplished by driving or by other means—and driving a stolen car after its theft is complete, i.e., posttheft driving. (Page, at pp. 1183–1184, 1188–1189.) The Court explained that the Attorney General’s distinction between taking a vehicle by driving it away and taking a vehicle by other means was not one that had ever had any significance under Section 10851.

The Court had held in Page that Proposition 47 was intended to apply to thefts of low-value vehicles prosecuted under that Vehicle Code section 10851. Here, the Court concluded that Proposition 47 was also intended to ameliorate the punishment for low-value vehicle takings committed without the intent to permanently deprive. The Court summarized Proposition 47’s substantive effect on section 10851 thusly: “Except where a conviction is based on posttheft driving (i.e., driving separated from the vehicle’s taking by a substantial break), a violation of [S]ection 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less. Accordingly, the Supreme Court reversed, and remanded for resolution of a separate question pertaining to the valuation of the car Bullard took from his girlfriend.

D. Proposition 47’s amendment to general statute that criminalizes receipt of stolen property does not extend to convictions for receiving stolen vehicle.

People v. Orozco, 2020 Cal. LEXIS 1918 (Mar. 26, 2020)

Facts: In August 2014, Ernest Orozco was stopped by police officers while he was driving in Escondido. A routine license plate check indicated the car Orozco was driving had been reported stolen. According to the police report, Orozco was the only occupant of the vehicle, and the car had a damaged ignition starter and was running without a key. The police report listed the value of the vehicle as $301. Orozco pled guilty to one count of unlawfully driving a vehicle in violation of Vehicle Code section 10851(a), and one felony count of “unlawfully buying, receiving, concealing, selling or withholding a stolen vehicle” in violation of Penal Code section 496d. He also admitted to prior prison terms and prior convictions for violating Vehicle Code section 10851. His prior Section 10851 convictions required him to be sentenced as a felon for his two August 2014 convictions.

After Orozco pleaded guilty, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. The proposition amended several statutory provisions to reduce certain criminal offenses from felonies to misdemeanors. Proposition 47 amended Penal Code section 496, the general statute that criminalizes receipt of stolen property, by making the offense a misdemeanor whenever the value of the property does not exceed $950. (Section 496(a).) However, Proposition 47 did not amend section 496d.

Orozco filed a motion under Proposition 47 to reduce both of his convictions to misdemeanors.[23] The trial court denied Orozco’s motion and treated both convictions as felonies. Orozco appealed, and the Court of Appeal affirmed. After granting review, the Supreme Court of California transferred the case to the Court of Appeal for reconsideration in light of the Supreme Court’s decision in People v. Page (2017) 3 Cal.5th 1175.

Upon reconsideration, the Court of Appeal affirmed Orozco’s conviction under Vehicle Code section 10851 without prejudice to his filing an amended petition to show that the conviction was based on theft of a vehicle worth $950 or less. The Court of Appeal further held that Proposition 47’s revisions to Penal Code section 496 did not extend to convictions, like Orozco’s, for receiving a stolen vehicle under Section 496d. The California Supreme Court then granted review on the issue pertaining to Section 496.

Held: As amended by Proposition 47, Penal Code section 496(a), in relevant part, states that “[e]very person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained …” shall be imprisoned, and “if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor. . . .” (Italics added to indicate the part of the statute amended by Proposition 47.) Before Proposition 47, receiving stolen property worth $950 or less was a “wobbler” offense, i.e., a crime punishable as either a felony or a misdemeanor. As a result of Proposition 47, the statute dictates that “the offense shall be a misdemeanor.” (Section 496(a).)

Section 496d(a) (as distinct from Section 496(a)) also criminalizes buying or receiving stolen property, but it applies specifically to buying or receiving a stolen motor vehicle, or other vehicles.[24] A violation of this statute is a wobbler offense: receiving a stolen vehicle “shall be punished by imprisonment . . . for 16 months or two or three years or a fine of not more than ten thousand dollars ($10,000), or both, or by imprisonment in a county jail not to exceed one year or a fine of not more than one thousand dollars ($1,000), or both.” (Section 496d(a).) Proposition 47 did not amend section 496d.

Orozco argued that because the term “any property” in Section 496(a) included automobiles, his conviction for receiving a stolen vehicle in violation of Section 496d must be treated as a misdemeanor under the amended language of Section 496(a). Orozco relied on Page, which held that “Proposition 47’s new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense,” even though Vehicle Code section 10851 was not amended by Proposition 47 and “is not mentioned in the opening clause of section 490.2, subdivision (a).” (Page, supra, 3 Cal.5th at pp. 1183, 1186.) Page thus determined that under Proposition 47, “obtaining an automobile worth $950 or less by theft . . . is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged.” (Page, at p. 1187.)

Orozco contended that the term “any property” in Section 496(a) was just as encompassing as the term “any property” in Proposition 47’s petty theft provision, Section 490.2.[25] Therefore, under Page’s logic, the act of receiving a stolen vehicle worth $950 or less is punishable only as a misdemeanor under Proposition 47’s amendment of section 496(a), even if the offense was prosecuted under section 496d.

The Supreme Court found Section 490.2 differed from Section 496(a) in two ways that thwarted Orozco’s attempt to analogize the two. First, Section 490.2 was intended to function as a sweeping catch-all that would capture all forms of theft, including those chargeable under Penal Code section 484e or Vehicle Code section 10851; whereas Proposition 47’s amendment to section 496(a) did not create a new offense or purport to broadly reclassify several existing offenses, but rather reduced the punishment for a subset of an existing offenses. The Court found that unlike Section 490.2, the clause in Section 496(a) reducing punishment for receipt of stolen property valued at $950 or less did not “‘stand[] on its own.’“ (Page, supra, 3 Cal.5th at p. 1186.)

Second, Section 490.2 applies “[n]otwithstanding Section 487 or any other provision of law defining grand theft.” (Section 490.2(a).) Page concluded that this “notwithstanding” clause clarified that if the Section 490.2 conflicted with a preexisting statute punishing the same conduct, Section 490.2 would override that other statute. Page explained that the existence of the “notwithstanding” clause at least indicated that the drafters anticipated that conduct criminalized by Section 490.2 would overlap with conduct criminalized by other statutes and that they intended Section 490.2 to reclassify such conduct as “petty theft” punishable only as a misdemeanor. (Page, at p. 1186.) Here, the Supreme Court found the absence of any “notwithstanding” clause in Section 496(a) indicated that the drafters did not intend for the statute to affect conduct criminalized in other statutes, let alone reclassify conduct covered in those statutes. Thus, the Court found that Section 490.2 was therefore not comparable to Section 496(a) in the way that Orozco proposed.

The Supreme Court considered the statutory context here to be clear. The Court explained that it was a settled principle of statutory interpretation that when voters had employed a term or phrase in one place and excluded it in another, it should not be implied where excluded. (People v. Buycks (2018) 5 Cal.5th 857, 880.) The Supreme Court noted that it “generally presume[s] that the electorate is aware of existing laws,”[26] and the Court therefore presumed the electorate was aware of Section 496d when it approved Proposition 47. Proposition 47 only amended Section 496(a) to reduce receipt of stolen property valued at $950 or less to a misdemeanor, and left Section 496d unchanged. The Court explained that if the electorate had intended to reclassify Section 496d offenses as well, it could have done so in the same way that it did in amending Section 496(a). The Court explained that the electorate also could have created a new misdemeanor sentencing provision governing all receipt of stolen property offenses, similar to the misdemeanor sentencing provision governing petty theft in Section 490.2. However, the electorate did not do so.

The Supreme Court thus concluded that Orozco’s Section 496d conviction was not eligible for a sentence reduction under Proposition 47, and accordingly affirmed the judgment of the Court of Appeal.

[1] Schmitz, at p. 922, fn. 13, citing People v. Middleton, 131 Cal.App.4th 732, 739–740 (1st Dist. 2005).

[2] Penal Code section 3067, subds. (a), (b)(3)).

[3] Section 922(g)(4)’s prohibition from firearm possession applies to involuntary commitment. Federal regulations make clear that the prohibition does not apply to “a person in a mental institution for observation or a voluntary admission to a mental institution.” 27 C.F.R. section 478.11. (italics added.)

[4] Plaintiff also alleged violation of his Fifth Amendment right to due process, but after the District Court rejected Plaintiff’s due process claim, Plaintiff did not advance the Fifth Amendment claim on appeal to the Ninth Circuit.

[5] Tyler v. Hillsdale County Sheriff’s Department, 837 F.3d 678, 691 (6th Cir. 2016) (en banc).

[6] Washington v. Glucksberg, 521 U.S. 702, 730-35 (1997).

[7] Schall v. Martin, 467 U.S. 253, 264 (1984).

[8] Tyler, 837 F.3d at 693.

[9] Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n.6 (1983).

[10] A casita is a separate small house/living area (usually detached from the main home, although not in this case).

[11] Community Hospital of Long Beach no longer operates.

[12] Yurick v. Superior Court, 209 Cal.App.3d 1116, 1121 (3rd Dist. 1989).

[13] Cole v. Antelope Valley Union High School Dist., 47 Cal.App.4th 1505, 1511, 1515 (2nd Dist. 1996).

[14] Valdez v. City of Los Angeles, 231 Cal.App.3d 1043, 1061 (2nd Dist. 1991).

[15] Bus. & Prof. Code section 26000 et seq., as amended by Stats. 2017, ch. 27, section 4.

[16] Bus. & Prof. Code section 26200(a)(1).

[17] Bus. & Prof. Code section 26055(d).

[18] People v. Bollaert, 248 Cal.App.4th 699, 708–709 (4th Dist. 2016), quoting People v. Barba, 211 Cal.App.4th 214, 223 (4th Dist. 2012).

[19] People v. Truong, 10 Cal.App.5th 551, 562 (2nd Dist. 2017).

[20] People v. Page, 3 Cal.5th 1175, 1182 (2017).

[21] People v. Sanders, 22 Cal.App.5th 397, 400 (4th Dist. 2018).

[22] The trial court, in accord with the Supreme Court’s Hunter decision holding that Providers could disclose social media communications designated by a user as public, also ordered one of the Providers to produce public content.

[23] Because Orozco had not yet been sentenced, he sought relief directly under the new law rather than resentencing under Penal Code section 1170.18 (a). (See People v. Lara (2019) 6 Cal.5th 1128, 1135 [“Because defendant had not yet been sentenced at the time Proposition 47 became effective, its ameliorative provisions apply.”].)

[24] Section 496d(a) criminalizes buying or receiving a stolen “motor vehicle, as defined in Section 415 of the Vehicle Code, any trailer, as defined in Section 630 of the Vehicle Code, any special construction equipment, as defined in Section 565 of the Vehicle Code, or any vessel, as defined in Section 21 of the Harbors and Navigation Code . . . .” (Section 496d, subd. (a).)

[25] Section 490.2, subd. (a) provides in part: “Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining 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 . . . .” (italics added.)

[26] People v. Romanowski (2017) 2 Cal.5th 903, 909, citing In re Lance W. (1985) 37 Cal.3d 873, 890 & fn. 10.