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The Judicial Council’s Emergency Rule 4’s bail schedule sets presumptive bail amount for covered offenses and violations, which may be modified by superior court.

Ayala v. Superior Court, 48 Cal. App. 5th 387 (4th Dist. 2020)

Facts: Responding to the state of emergency existing in the State of California as a result of the ongoing COVID-19 pandemic, the Governor of California issued Executive Order N-38-20, which conferred on the Judicial Council of California unprecedented authority to promulgate rules governing court administration, practice, and procedure as necessary to address the emergency.

Pursuant to this authority, and its constitutional obligation to “adopt rules for court administration, practice and procedure” (Cal. Const., art. VI, section 6, subd. (d)), the Judicial Council considered and adopted eleven emergency rules[1] covering various aspects of civil and criminal practice, including Emergency Rule 4.

In a report to the Judicial Council recommending adoption of the emergency rules, the chairs of the Judicial Council’s six internal committees noted that the pretrial custody decisions of trial courts can affect the spread of COVID-19. Citing a “need for greater uniformity throughout the state,” the committee chairs’ report recommended that the Judicial Council “adopt an emergency rule of court that provides for a statewide Emergency Bail Schedule.” The emergency rule would adopt an Emergency Bail Schedule “to set bail at $0 for misdemeanors and certain felonies … .” The Emergency Bail Schedule would apply “[p]ursuant to Penal Code section 1269b … to any accused currently held in county jail custody charged with an offense covered by the schedule.” The regularly adopted countywide bail schedule would apply to any other offenses. The emergency rule would require “[b]ail to be set at $0 for violations of misdemeanor probation, whether the arrest is made with or without a bench warrant. For violations of felony probation, parole, post release community supervision, or mandatory supervision, bail must be set in the same amount as bail for the underlying substantive charge of conviction under the Emergency Bail Schedule.”

The Judicial Council adopted the recommended rule as Emergency Rule 4. It provides, “Notwithstanding any other law, this rule establishes a statewide Emergency Bail Schedule, which is intended to promulgate uniformity in the handling of certain offenses during the state of emergency related to the COVID-19 pandemic.” (Emergency Rule 4(a).) “Under the statewide Emergency Bail Schedule, bail for all misdemeanor and felony offenses must be set at $0 (emphasis added), with the exception of only the offenses listed below … .” (Emergency Rule 4(c).) Likewise, “[u]nder the statewide Emergency Bail Schedule, bail for all violations of misdemeanor probation, whether the arrest is with or without a bench warrant, must be set at $0.” (Emergency Rule 4(f)(1).) “Bail for all violations of felony probation, parole, post-release community supervision, or mandatory supervision, must be set in accord with the statewide Emergency Bail Schedule, or for the bail amount in the court’s countywide schedule of bail for charges of conviction listed [in the exceptions to the statewide Emergency Bail Schedule].” (Emergency Rule 4(f)(2).) Even for covered offenses, Emergency Rule 4 does not affect the constitutional authority of superior courts to deny bail altogether in limited circumstances: “Nothing in the Emergency Bail Schedule restricts the ability of the court to deny bail as authorized by article I, section 12, or 28(f)(3) of the California Constitution.” (Emergency Rule 4(d).)[2] In sum, Emergency Rule 4 established a statewide Emergency Bail Schedule which sets bail for all misdemeanor offenses, certain felony offenses, and violations of postconviction supervision at zero dollars (zero bail), except as specified in the rule.

Emergency Rule 4 directed the superior courts to apply the Emergency Bail Schedule, by no later than 5 p.m. on April 13, 2020, to every accused person arrested and in pretrial custody and to every accused person held in pretrial custody. (Emergency Rule 4(b).)

San Diego Superior Court’s General Order

The San Diego County Superior Court implemented Emergency Rule 4 in General Order No. 041320-42. The order provided that the superior court should apply the Emergency Bail Schedule “in the same manner as the regularly adopted San Diego County Bail Schedule” except as specified in the order. (Emphasis added.) The order stated, “For persons arrested prior to the effective date and time of this order, bail shall be set in accordance with the [Emergency Bail Schedule]. However, the court retains the traditional authority in an individual case to depart from the bail schedule or impose conditions of bail to assure the appearance of the defendant or protect public safety.” (Emphasis added.)

To preserve that authority, the order set forth a procedure for making individualized assessments regarding persons held in custody: “Persons whose bail is reduced to zero by the [Emergency Bail Schedule] shall be released from custody at 5:00 p.m. on April 15, 2020, or as soon thereafter as is feasible, unless prior to 5:00 p.m. on April 15, 2020, the prosecuting agency notifies the Sheriff that it will be requesting an increase in bail, a ‘no bail’ hold, or imposition of conditions of release.” (Emphasis added.) If the prosecuting agency notifies the court of its request to seek higher bail, additional steps follow.[3]

For newly arrested persons, the order provides that bail must be set in accordance with the Emergency Bail Schedule. However, as with persons already in custody, the order adopted a procedure for considering departures from the Emergency Bail Schedule and bail conditions: “Requests for a modification of the bail amount, or for conditions of release, shall be made to the daytime or after-hours duty judge. If bail is modified, or conditions imposed, the court will notify the Sheriff’s Watch Commander at the detention facility where the defendant is housed, and the Sheriff shall note the change on defendant’s paperwork, including any release papers.”

The San Diego County Public Defender filed an objection to the superior court’s order. After a hearing, the presiding judge, in a written opinion, overruled the public defender’s objection.

Pursuant to the implementation order, the prosecuting agencies identified between 100 and 200 persons in pretrial custody for whom the agencies sought a bail increase or bail conditions. These individuals, represented by the public defender, petitioned the California Fourth District Court of Appeal for a writ of mandate directing the superior court to rescind its implementation order, arguing that Emergency Rule 4 mandates zero bail for any covered offense or violation, with the only exception being the court’s constitutional authority to deny bail altogether. Under their interpretation, the superior court would not be permitted to increase bail above zero dollars or impose conditions on bail. In a second petition, three individuals arrested for violating their post-conviction supervision also challenged the superior court’s implementation of Emergency Rule 4. They alleged that they were being held in custody without bail and that the superior court refused to apply Emergency Rule 4 to them.

The Fourth District consolidated the proceedings on the two petitions and issued an order to show cause. The consolidated petitioners challenged the superior court’s implementation order as inconsistent with Emergency Rule 4. They argued that bail for offenses and violations covered by the rule must be set at zero dollars, and that the superior court had no authority to increase bail or impose conditions in an individual case. They also contended that the implementation order, including the remote hearings contemplated therein, violated various constitutional protections.

Held: The California Fourth District Court of Appeal explained that the California Constitution provides that a defendant “shall be released on bail by sufficient sureties” unless an exception applies. (Cal. Const., art. I, section 12.) The superior court judges in each county are required by statute to adopt a “countywide schedule of bail” for bailable felony, misdemeanor, and infraction offenses (except Vehicle Code infractions). (Penal Code section 1269b, subd. (c).) “The countywide bail schedule shall contain a list of the offenses and the amounts of bail applicable for each as the judges determine to be appropriate.” (Id., subd. (f).) The countywide bail schedule sets out the “presumptive” amount of bail for the identified offenses. (In re Christie (2nd Dist. 2001) 92 Cal.App.4th 1105, 1109.) In general, before a defendant’s appearance in court, “the bail shall be in the amount fixed in the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail shall be pursuant to the uniform countywide schedule of bail for the county in which the defendant is required to appear … .” (Penal Code section 1269b, subd. (b).)

If conditions warrant, a peace officer may apply for bail in excess of the scheduled amount: “If a defendant is arrested without a warrant for a bailable felony offense or for the misdemeanor offense of violating a domestic violence restraining order, and a peace officer has reasonable cause to believe that the amount of bail set forth in the schedule of bail for that offense is insufficient to ensure the defendant’s appearance or to ensure the protection of a victim, or family member of a victim, of domestic violence,” the officer may apply for an order setting a higher bail. (Penal Code section 1269c.)

The court need not adhere to the scheduled amount, but rather has the discretion to make individualized determinations as appropriate. “In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations.” (Cal. Const., art. I, section 28, subd. (f)(3).) The bail statutes set out these factors to guide the court’s discretion as well. (Penal Code section 1275, subd. (a).)

In addition to the amount of bail, courts have the authority to impose conditions related to public safety on persons released on bail. (Cal. Const., art. I, section 28, subd. (b)(3).) “Any condition must be reasonable, and there must be a sufficient nexus between the condition and the protection of public safety.” In re Webb, 7 Cal.5th 270, 278 (2019).

As mentioned, the Judicial Council adopted Emergency Rule 4, which declares that under the statewide Emergency Bail Schedule, “bail for all misdemeanor and felony offenses must be set at $0” unless the defendant is charged with certain excepted offenses. (Emergency Rule 4(c).) Under the statewide Emergency Bail Schedule, “bail for all violations of misdemeanor probation, whether the arrest is with or without a bench warrant, must be set at $0” and “[b]ail for all violations of felony probation, parole, post-release community supervision, or mandatory supervision, must be set in accord with the statewide Emergency Bail Schedule, or for the bail amount in the court’s countywide schedule of bail for” excepted offenses. (Emergency Rule 4(f)(1)–(2).)

Petitioners argued that the plain language of Emergency Rule 4 (e.g., bail “must be set”) established that the superior court could not deviate from the zero dollar bail amount in the statewide Emergency Bail Schedule.

The Fourth District disagreed, explaining that Emergency Rule 4 did not just mandate zero bail for the covered offenses, irrespective of the particular facts of each defendant’s case. Instead, it adopted a schedule, the statewide Emergency Bail Schedule, under which bail for the covered offenses was zero dollars. The Court of Appeal declared that the rule could reasonably be interpreted to preserve the superior court’s existing authority to increase bail from the scheduled zero dollar bail amount if the circumstances and existing statutes permitted such a deviation.

The Fourth District determined that the history and structure of the rule demonstrated that this interpretation was the correct one. The Judicial Council report had emphasized that the Chief Justice had issued an advisory to trial courts to “[r]evise, on an emergency basis, the countywide bail schedule to lower bail amounts significantly for the duration of the coronavirus emergency, including lowering the bail amount to $0 for many lower level offenses … .” The Fourth District explained that because the trial courts did not have the power generally to suspend existing statutes or court rules, the recommended emergency countywide bail schedules would necessarily function in the same way as existing regularly adopted bail schedules. Specifically, trial courts applying such emergency countywide bail schedules could, in appropriate circumstances, increase bail from zero dollars in individual cases or impose reasonable conditions on release.

The Court noted the emphasis on “uniformity” in the Judicial Council report and in the rule. The first subdivision of Emergency Rule 4, entitled “Purpose,” states: “Notwithstanding any other law, this rule establishes a statewide Emergency Bail Schedule, which is intended to promulgate uniformity in the handling of certain offenses during the state of emergency related to the COVID-19 pandemic.” (Emergency Rule 4(a), italics added.) The Fourth District concluded that the Judicial Council report and the express purpose of the rule demonstrated that Emergency Rule 4 was intended to mandate that the Chief Justice’s recommendation be adopted by every trial court in the state in the same manner, i.e., the same offenses would be subject to the same zero dollar scheduled bail amount in every county. The Court explained that the focus on uniformity undermined the petitioners’ argument that the statewide Emergency Bail Schedule in the rule was intended to function differently from existing countywide bail schedules—by depriving trial courts of their established authority to depart from the scheduled bail amount and impose bail conditions. Instead, the focus on uniformity demonstrated that the Judicial Council intended the statewide Emergency Bail Schedule to operate as if each court had adopted it—uniformly—as a countywide bail schedule.

The Court further noted that the report specifically invoked Penal Code section 1269b, which mandates the adoption of countywide bail schedules. The report stated, “Pursuant to Penal Code section 1269b, [the rule would require] the application of the statewide Emergency Bail Schedule to any accused currently held in county jail custody charged with an offense covered by the schedule.” The Court explained that the report thus contemplated that the statewide Emergency Bail Schedule established by the rule was intended to fit comfortably within existing statutes governing the setting of bail, rather than supersede them.

Moreover, the Court found the use of the term “schedule” in the rule supported this interpretation. The rule directed trial courts to “apply the statewide Emergency Bail Schedule” to certain categories of persons in custody. (Emergency Rule 4(b).) It then described the substance of the schedule, i.e., zero bail for the covered offenses. (Emergency Rule 4(c).) For excepted offenses, the rule directed trial courts to apply their regularly adopted countywide bail schedules, and courts retained the authority to modify those schedules as needed. (Emergency Rule 4(e).) The Court concluded that by establishing a statewide bail schedule and directing courts to apply it, while continuing to apply their countywide bail schedule to excepted offenses, the rule embodied the Judicial Council’s intent to create a uniform schedule for the covered offenses—but not to alter the normal function of bail schedules in setting bail for individual defendants under existing statutes.

In summary, the Fourth District denied the petitioners’ contention that the superior court could not depart from the zero bail amount in the statewide Emergency Bail Schedule in any individual case. To the contrary, the history and structure of Emergency Rule 4 demonstrated that the Judicial Council intended the statewide Emergency Bail Schedule to function in the same manner as the countywide bail schedule in each court. Under the rule, the superior court retains the ability to depart from the scheduled zero bail amount or impose bail conditions under appropriate circumstances in an individual case. The Court similarly concluded that the petitioners had not demonstrated that the superior court’s implementation order was unauthorized or unconstitutional. Emergency Rule 4 required the application of the statewide Emergency Bail Schedule to defendants already held in pretrial custody. (Emergency Rule 4(b).) The implementation order created a reasonable process for delineating those defendants who could be released on the scheduled zero dollar bail, and those defendants for whom individualized bail decisions would be made after the prosecution requested an upward departure in the scheduled amount or conditions of release.

The Court also concluded that the petitioners had not shown the implementation order or its procedures violated any guarantees of the federal or state constitutions, at least on the current record. The Fourth District Court of Appeal accordingly denied the petitions.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 18, available at



A. Officer’s misstatement during Mirandized capital defendant’s interrogation that there was no death penalty in California did not prompt defendant’s confessions.

Benson v. Chappell, 958 F.3d 801 (9th Cir. 2020)

Facts: In January 1986, Richard Allen Benson deliberately murdered Laura Camargo and her two-year old son, and sexually molested her four-year-old and three-year-old daughters, before brutally murdering both girls. He then set the family’s home on fire and fled the scene. The next day, Benson kidnapped and threatened the life of another woman, K.S. After Benson made K.S. drive to an abandoned house, he went inside. K.S. then drove to her home and called the police. She later accompanied police to the abandoned house, and police arrested Benson. He was booked late that night in connection with the woman’s kidnapping.

In the morning of January 9, 1986, Detective Bolts and Investigator Hobson began interviewing Benson in an office at the San Luis Obispo County Detective Bureau. Benson was initially detained on a parole hold based on his kidnaping of K.S. At the beginning of the interview, Bolts read Benson his Miranda[4] rights, and Benson indicated that he understood his rights and waived them. After initially focusing on a charge of kidnapping K.S., the officers then shifted their focus to the events that occurred at Camargo’s home. Bolts commented, “I think we could perhaps start anew and talk about some things that occurred Saturday night and talk some straight turkey.” Benson said “as it looks right now, I’m a very suspected man,” and expressed concern that for him, it was “the end of the line.” After Bolts inquired, “Why? There’s no death penalty here,” Benson replied, “That doesn’t matter.” Benson subsequently confessed to sexually molesting Camargo’s two daughters, and murdering Camargo, her daughters, and Camargo’s two-year old son.

Benson was returned to jail and booked him on murder and other charges. The next morning, Dr. Gordon of the Sexual Assault and Response Team visited Benson. According to Dr. Gordon’s testimony, he told Benson that he was a doctor and he advised Benson of his constitutional rights including the right to remain silent and the right to an attorney. Benson agreed to talk to him and proceeded to describe his sexual molestation of the two girls in some detail.

On January 13, 1986, Bolts and Hobson interviewed Benson again. Benson was again advised of his Miranda rights and waived them. Benson then provided further details of the crimes. Near the end of the interview, the following dialogue transpired:

Bolts: . . . [J]ust so that I’m clear, is there something that we’ve said uh, as far as, you know, threats that we’ve made to you, promises or any promises of leniency, anything that has caused you to tell us what you’ve told us?

Benson: No. I’m surprised that that came up.

Bolts: Well, I, it’s something that uh, you know, I’ve thought of, that maybe something that we said you interpreted as some kind of threat or promise or some . . .

Benson: You know what, if you guys started whipping me with billy clubs right now, you’d see me smile, so you know that’s not uh, a . . . now, no, you guys are good at your job, I complimented you to your lieutenant about it as a matter of fact, uh, I’m glad you are, because it served in getting me off the street, you know, I feel that in some sick twisted way I helped a little, but you guys still . . . you did your job.

Benson was subsequently charged with murder, child molestation, arson, and kidnapping.

In February 1986, on the first day of trial, the court ruled on Benson’s motion to suppress his confessions to the officers. At the suppression hearing, Benson stated that when Detective Bolts commented that there was “no death penalty here,” Benson thought Bolts meant that “the death penalty was dormant in California, and that they weren’t seeking the death penalty….” When asked why he gave information to the police, Benson testified that “there’s no one answer to that.” The trial court judge denied the motion, concluding that he was “persuaded beyond a reasonable doubt that Mr. Benson’s statements were not coerced by promise of leniency, but rather were made freely and voluntarily.”

A jury found Benson guilty of the charges and Benson was sentenced to death. After his conviction and sentence were affirmed and the California Supreme Court denied several habeas petitions, Benson filed a federal habeas petition with the United States District Court for the Central District of California. The District Court denied the petition. Benson appealed.

Held: On appeal, Benson argued, among other things, that his confessions that he made to Bolts and Hobson should have been suppressed. Benson claimed that his statements were not voluntary because he relied on the officer’s statement that there was no death penalty and that the interrogations were coercive.

The Ninth Circuit Court of Appeals explained that because Benson’s claims were subject to review under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. section 2254, to be granted relief, he must show that the California Supreme Court’s denials of his claims were “contrary to, or involved an unreasonable application of, clearly established Federal law,” or were “based on an unreasonable determination of the facts.” 28 U.S.C. section 2254(d).

The Ninth Circuit observed that Benson admitted that he was advised of his Miranda rights prior to each of his police interviews and he indicated that he understood those rights and waived them. The Ninth Circuit noted that the trial court had found that that the police officers had not been coercive and that their statement regarding the death penalty did not function as an inducement. The trial court had thus concluded that “Mr. Benson’s statements were not coerced . . . but rather were made freely and voluntarily.” The Ninth Circuit further noted that the California Supreme Court, after a review of the record, determined that Benson’s confession was “voluntary beyond a reasonable doubt.”[5] The Supreme Court had found that there was “[n]o coercion, no harassment. To the contrary, [the police interview] was strangely cordial and somewhat light, and not at all heavy-handed in the approach that was taken.”[6] The Supreme Court had also noted that there was a “not insubstantial” period of time between Detective Bolts’s statement about the death penalty and Benson’s ultimate confession, and that Benson’s statement “it doesn’t matter” in response to Bolts’ comment “practically compel[led] the inference that insofar as the confessions were concerned, the comment in fact ‘didn’t matter.’”[7]

The Ninth Circuit explained that with regard to coerced confessions, the “pivotal question . . . is whether the defendant’s will was overborne when the defendant confessed.” United States v. Miller, 984 F.2d 1028, 1031 (9th Cir. 1993). The Ninth Circuit noted that the California Supreme Court was presented with evidence that Benson understood the questions being asked of him and volunteered a confession. Benson stated that the existence of a death penalty “didn’t matter” and the interrogation was not coercive. Benson testified that his “primary thought was nothing was going to change the effect of the people that died. Nothing was going to bring them back.” He noted that there was “no one answer” to explain why he decided to confess, and he indicated on several occasions that he felt relieved by admitting his actions. The California Supreme Court had therefore concluded that Benson’s will was not overborne by the misstatement about the law regarding the death penalty in California.

The Ninth Circuit concluded that the California Supreme Court’s decision was neither “an unreasonable application, of clearly established Federal law, as determined by the Supreme Court of the United States,” nor “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. section 2254(d)(1)-(2). The Ninth Circuit found that the California Supreme Court had reasonably concluded that Benson’s confessions were voluntary.

The Circuit Court also found against Benson in his other claims on appeal. The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s denial of Benson’s petition for a writ of habeas corpus.

B. No reasonable expectation of privacy in the historical location data of rental vehicle after defendant failed to return it by the contract due date where there was no policy or practice of the rental company permitting lessees to keep cars beyond the rental period.

United States v. Yang, 958 F.3d 851 (9th Cir. 2020)

Facts: In April 2016, Jay Yang was observed on surveillance cameras driving a rented GMC Yukon and stealing mail out of collection boxes at a Las Vegas post office. U.S. Postal Inspector Justin Steele spoke with Prestige Motors, the company from which Yang rented the Yukon. Inspector Steele was informed that the vehicle was approximately six days overdue and that Prestige had attempted to repossess the vehicle by activating its Global Positioning System unit (“GPS”) and remotely disabling the vehicle. Inspector Steele was also informed that the vehicle was not at the location indicated and that the GPS unit was no longer functioning, apparently having been disabled by a third party.

Inspector Steele queried the largest license plate-location database in the country called LEARN, operated by a private company called Vigilant Solutions, with hopes of locating the Yukon and Yang. The database receives license plate images and GPS coordinates from digital cameras mounted on tow truck, repossession company, and law enforcement vehicles. These camera-mounted vehicles photograph any license plate they encounter while driving around in the course of business. The Automatic License Plate Recognition (“ALPR”) technology loaded on a laptop inside the camera-mounted vehicles interprets the alphanumeric characters depicted on the plate into machine-readable text and records the latitude and longitude of a vehicle the moment it photographs a license plate. The software also generates a range of addresses estimated to be associated with these GPS coordinates. This information is uploaded to the database and is searchable by law enforcement agencies that pay a subscription fee.

When Inspector Steele entered the license plate number for the Yukon in the LEARN database, his query revealed that the vehicle had been photographed after the deadline to return the Yukon had passed. Inspector Steele promptly proceeded to the gated condominium complex that had been identified by the ALPR software as most closely associated with the GPS coordinates of the repossession vehicle at the time it photographed the Yukon’s plate. Inspector Steele soon located Yang at his residence and the Yukon. After further investigation and visual surveillance, Inspector Steele obtained a warrant to search Yang’s residence. There, he found devices known to be used for stealing mail out of mailboxes, numerous pieces of stolen mail, and a pistol. After waiving his Miranda rights, Yang spoke to law enforcement and admitted to stealing mail from collection boxes in the area and to owning the firearm.

In July 2016, a federal grand jury in the District of Nevada returned an indictment against Yang, charging him with receipt of stolen mail in violation of 18 U.S.C. section 1708, and being a prohibited person in possession of a firearm in violation of 18 U.S.C. sections 922(g)(1) and 924(a)(2). Yang moved to suppress the evidence seized from his residence and the statements he made to law enforcement on the basis that the search warrant obtained by the Postal Inspection Service relied on evidence that was obtained illegally. Yang argued that the ALPR technology used by Inspector Steele without a warrant to track and locate the Yukon within Yang’s gated condominium complex constituted a “search” under the Fourth Amendment.

The District Court denied Yang’s motion to suppress. Yang pled guilty to the charged offenses, reserving the right to appeal the District Court’s denial of his motion to suppress. The District Court accepted Yang’s conditional plea and sentenced Yang to 35 months in prison and three years of supervised release. Yang appealed.

Held: The Ninth Circuit Court of Appeals considered whether Yang had a reasonable expectation of privacy in his movements as revealed by the historical location data of the Yukon that was not returned by the rental contract due date. The Court explained that whether an individual has a Fourth Amendment privacy interest normally embraces two questions. Bond v. United States, 529 U.S. 334, 338 (2000). “First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that ‘he [sought] to preserve [something] as private.’“ Id. (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979) (internal quotation marks omitted)). “Second, we inquire whether the individual’s expectation of privacy is ‘one that society is prepared to recognize as reasonable.’” Id. (quoting Smith, 442 U.S. at 740). The burden of proof is on a defendant to demonstrate that he has a reasonable expectation of privacy in the subject of the Government’s warrantless search. See United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005).

The Ninth Circuit explained that while the mere expiration of the rental period does not automatically end a lessee’s expectation of privacy,[8] the Court nonetheless concluded that Yang had failed to establish that he had a reasonable expectation of privacy in the historical location information of the Yukon under the facts of this case. The Court explained that there was no evidence in the record that Prestige Motors had a policy or practice of allowing lessees to keep cars beyond the rental period and simply charging them for the extra time. The Court observed that Prestige had made affirmative attempts to repossess the vehicle by activating the GPS unit to locate and disable the vehicle.

The Court declared that it was “simply unwilling to conclude that a person has a reasonable expectation of privacy in his movements as revealed by the historical location data of a rental vehicle after failing to return the vehicle by the contract due date, when there is no policy or practice of the rental company ‘permitting lessees to keep cars and simply charging them for the extra time.’”[9] The Court noted that the rental contract provided that vehicles not returned by the due date would be reported as stolen to the proper authorities, that Prestige might repossess a vehicle if not returned by the contract due date, and that a $250.00 repossession fee would apply. Yang presented no evidence at the suppression hearing of any other custom or practice by Prestige that led him to believe that rather than adhering to the rental contract terms and reporting the vehicle as stolen, Prestige would, absent any request by him, simply extend the lease term and charge him the additional fees. Finally, the Court concluded that Prestige’s private attempts to repossess the Yukon by activating the GPS and disabling the vehicle placed Yang, the sole authorized driver, on notice that Prestige did not intend to extend the lease term, but rather sought to repossess the vehicle.

The Ninth Circuit Court of Appeals thus concluded that Yang lacked Fourth Amendment standing to challenge the warrantless search of the database because his reasonable expectation had not been infringed,[10] and accordingly affirmed the District Court’s decision denying Yang’s motion to suppress.

C. State’s interest in preventing defendant’s harassing communication with victim could be served through narrower means than allowing warrantless searches of defendant’s communication devices.

People v. Prowell, 2020 Cal. App. LEXIS 398 (3rd Dist. May 12, 2020)

Facts: Defendant Benjamin Sadiki Prowell grew upset after a coworker, Allison V., ended their six-month dating relationship in February 2016. Defendant began calling Allison, sending her text messages, and messages through social media almost daily. Initially polite to defuse the situation, Allison stopped responding to defendant’s emails and answering his calls by the end of March 2016. Defendant emailed her almost 100 times, at her work and home email addresses, and sent her social media messages in the middle of the night. Responding by the same channels and by texts, Allison told defendant that his behavior was inappropriate, asked him to stop, and told him he was harassing her. Allison later blocked defendant from some social media and blocked his number from her cell phone. However, defendant used another social media channel to contact her, after which she blocked defendant there also. In some of his emails, defendant referenced Allison’s child and her sister. He also made a vague threat referencing his Navy friends that knew what Allison looked like and mentioned “the Navy frowns upon cheaters.” Defendant told Allison he had access to all of her account and computer information. In July 2016, Allison sent defendant an email telling him to leave her and her family alone, that his behavior was unacceptable, that he was harassing her, and that she was afraid.

Emails from defendant also indicated he was using the Internet to obtain current information on Allison and her new boyfriend, including pictures. Defendant told her he knew her secrets, commented about a photograph on Facebook of her and her son, and communicated with the new boyfriend, and a friend of Allison’s, through social media, text messages, and emails. In the communication with Allison’s new boyfriend, defendant suggested that Allison was promiscuous and detailed what he said were her sexual preferences.

In October 2016, Allison contacted law enforcement. Detective Joshua Helton of the Davis Police Department called defendant, identified himself as law enforcement, and discussed defendant’s contacts with Allison. Helton told defendant that Allison was feeling threatened by the contact and, in his opinion, defendant’s conduct was criminal. Even after this conversation with Helton, defendant continued to contact Allison via email and social media. He sent her a message asking her not to call law enforcement again and claimed he would not contact her again. In the next two months, defendant sent Allison 25 more emails, and sent an Instagram message to Allison’s new boyfriend, under the account name “TheStalker0000.” Defendant also sent Helton several emails.

In January 2017, Detective Helton told defendant he was going to forward the case to the District Attorney, and if defendant continued to contact Allison, Helton might have to take additional action. Over the following weeks, defendant sent Allison many more emails. Helton sought a warrant and arrested defendant.

Law enforcement officers examined defendant’s phone and found text messages with his former boss where defendant admitted he had been sending Allison emails for months and that she called it harassment. He discussed attempting to break up the relationship between Allison and her friend, damaging Allison’s professional reputation, and disrupting her family member’s business. He also admitted sending Allison’s new boyfriend a message and using Facebook to find that boyfriend’s information.

A jury found defendant not guilty of stalking but guilty of the misdemeanor offense of annoying or harassing communication misdemeanor conviction for making harassing electronic communications under Penal Code section 653m(b). The trial court also found the repeated contact, including after the police told defendant to stop, would instill fear, and thus constituted domestic violence. The trial court placed defendant on three years’ probation with conditions prohibiting him from using or accessing social media websites and allowing warrantless searches of his “communication devices.” Defendant appealed, arguing the probation conditions were overbroad.

Held: The California Third District Court of Appeal explained that a probation condition is unconstitutionally overbroad if it “(1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.’ [Citations.]” (In re E.O. (6th Dist. 2010) 188 Cal.App.4th 1149, 1153.)

The Court concluded that a complete prohibition on the probationer defendant’s access to social networking websites during the term of probation was a close fit between the legitimate purpose of the restriction – i.e., the probationer’s reformation and rehabilitation – and the burden that such a condition would impose on defendant for the duration of the probationary term. The Court noted that defendant used social media to perpetrate the crime for which he was placed on probation, gathered information on the victim and her family through social media, had inappropriate contacts with the victim’s friends through social media, and continued to use social media to discuss the case even after conviction.[11] Thus, imposition of a complete prohibition of the use or access of social networking sites was sufficiently tailored to the state’s legitimate interest in defendant’s reformation and rehabilitation.

Turning to the condition pertaining to defendant’s “communication devices,” the Third District observed that the United States Supreme Court in Riley v. California (2014) 573 U.S. 373, 396–397 made clear that a probation condition that authorized the warrantless search of an electronic storage device, such as a cell phone, carried the potential for a significant intrusion into defendant’s private affairs. The Court explained that a search of defendant’s mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity, including potential medical records, financial records, personal diaries, and intimate correspondence with family and friends. (See People v. Appleton (6th Dist. 2016) 245 Cal.App.4th 717, 725.) The mobile application software could also include information about defendant’s political and religious affiliations, health concerns, hobbies, and social life. (Riley, at p. 396.)

The Court thus agreed with the defendant in finding that the electronic search condition impinged on defendant’s Fourth Amendment rights because it could potentially expose a large volume of data that had nothing to do with illegal activity; the communication device search condition was not sufficiently tailored to its purpose. The Court explained that state interests in preventing communication with the victim and fostering rehabilitation could be served through narrower means. The Court determined that the communication device search condition must be modified to limit authorization of searches to devices, accounts, and applications that were reasonably likely to reveal whether defendant had engaged in prohibited communication with the victim or the use of social media, or otherwise violated the terms of his probation.

The Third District accordingly struck the communication device search condition and remanded to the trial court to consider whether this condition could be narrowed in a manner that would allow it to “pass constitutional muster.” The Third District otherwise affirmed the judgment.


D. Administrative warrants impermissible to search premises if primary motivation is search for evidence in criminal investigation.

United States v. Grey, 2020 U.S. App. LEXIS 16788 (9th Cir. May 27, 2020)

Facts: In 2017, the City of Lancaster began to investigate Franz Grey for possible municipal code violations regarding his residence. Looking at the home from the street, one could see multiple tarps that covered the house and that some of the fences and walls exceeded the permissible height. There was also electrical wiring running to a metal fence. Standing outside the property, it was difficult to determine, due to the multiple tarps and debris, if the fence was electrified or to determine if there were other municipal code violations. A City code enforcement officer attempted to speak with Grey on more than one occasion, but Grey refused to assist him with any of his inquiries about his home and the possible code violations.

Several months later, the code enforcement officer issued administrative citations to Grey for property violations. For the next several months, Grey appealed the citations and made continuous phone calls and sent multiple faxes to the City. Code enforcement staff expressed safety concerns due to Grey’s incessant behavior and the unknown electrical wiring going to the fence. In March 2018, two code enforcement officers went to the Grey house to ascertain if there were any specific municipal code violations. Upon their arrival at the house, they saw the multiple tarps surrounding the premises, a large canopy structure covering the driveway, a large pole with a light attached and electrical wiring along the top of the fence. They ultimately determined that the fence was not electrified.

During their visit to his property, Grey spoke with the code enforcement officers and admitted to “fortifying” his home due to problems with his neighbors. One of the officers saw several parked cars on the property and believed Grey was running an unlawful auto repair business on his property. The officer, based upon his conversation with Grey and his observations of the property, believed that Grey would not correct the violations and that Grey could pose a threat to code enforcement officers if they entered onto his property. Soon thereafter, the code enforcement officer met with the City’s assistant city attorney and other members of the code enforcement team and it was decided that an inspection was necessary to determine if Grey’s property was safe.

In 2018, one of Grey’s neighbors called the sheriff’s department to report that Grey had been firing a gun into the air on the July 4th holiday. The neighbor also reported that Grey was exhibiting odd behavior by stringing up tarps on his property and installing flood lights. The neighbor stated that Grey had shown him a large amount of methamphetamine and an AK-47 rifle, a Glock handgun, a snub-nose revolver, and parts to guns. The neighbor also stated that he saw Grey fire guns on his property and had seen him carrying guns on his person. He further relayed that Grey had installed a pole camera and that he might have electrified his fence. He told the deputy that initially he did not want to get involved so that is why he did not report Grey to the authorities. However, he believed Grey was the person who had made a false allegation of child abuse to the authorities so even though he thought Grey may be mentally ill, the neighbor was no longer going to tolerate his behavior. The next day, the deputy went and spoke with other neighbors who stated Grey was “weird,” “unhinged,” “not all there,” and “strange.” The deputy also met with the code enforcement team and they stated that Grey was “strange” and assumed he had a mental illness.

During his investigation, the deputy discovered that Grey had a criminal history of felony driving under the influence, multiple felony drug arrests and had been convicted of voluntary manslaughter. The deputy also discovered that there had been calls for service to Grey’s house regarding the firing of a weapon. The deputy filed a police report with his sergeant, in which he stated that he believed Grey was a felon in possession of a weapon and ammunition, and that he had fired weapons on his property. He also felt that Grey was in possession of a controlled substance. The report was approved by his sergeant. However, at that time the sergeant did not feel there was enough probable cause to get either an arrest warrant for Grey or a search warrant of his residence.

Los Angeles County Sheriff’s Department personnel later learned from the assistant city attorney that she was going to apply for an administrative warrant, and due to Grey’s possible possession of firearms, she was going to ask the sheriff’s department for a security detail to assist during the administrative search. It was believed that Grey was not in compliance with the City’s municipal code and that the inspection warrant was necessary in order to determine whether dangerous condition existed on the property. Furthermore, the assistant city attorney felt that deputies would be needed for the service of the warrant due to Grey’s possible interference with the inspection and that the deputies should be permitted to forcibly enter the property if Grey refused to allow the inspectors onto the property. The inspection warrant was signed by a judge allowing the search and the use of the deputies during the inspection of the property.

Prior to the service of the inspection warrant, the deputies learned that the City had an inspection warrant signed by a superior court judge and was ready to be served. Accordingly, the sergeant in charge of the criminal investigation of Grey filed an “operation plan” for the service of that warrant since it involved the use of deputy personnel. It was also determined by the sergeant that if Grey was present during the inspection, he was to be arrested and to be questioned about the ongoing criminal investigation.

On May 3, 2018, the city inspectors and deputies went to Grey’s house to serve the inspection warrant. In the past, the sheriff’s department usually only sent one deputy to assist with inspection searches. However, in this instance, they sent nine deputies. Upon their arrival, Grey was contacted by the deputies. They convinced him to open the gate and then placed him under arrest for negligent discharge of a firearm and felon in possession of a firearm.[12] Grey was held in the back of a police car and was questioned regarding items that may be found in the house. The purpose of the inspection warrant was not explained to him at that time.

The deputies entered Grey’s home after he was being held in the police car. It was determined that they were in his house for about twenty minutes, or longer. According to the deputies, the purpose of their entry into his house was to ensure that it was safe. The deputies later on testified during the evidentiary hearing that they did not touch anything and that they observed in plain view multiple handguns, rifles, firearm parts, ammunition, drug paraphernalia and a large amount of white powder that resembled methamphetamine. Based upon these observations, the deputies sought a criminal search warrant for Grey’s house. After the house was made secure, the inspectors entered the house and discovered numerous violations of the municipal code, including hazardous conditions, non-permitted construction and fire hazards. Several hours later, the deputies executed a criminal search warrant at Grey’s house. During that time, Grey was transported to the sheriff’s station for questioning and to eventually be formally arrested.

Grey was charged in federal court as a felon in possession of firearms and ammunition and in possession of an unregistered firearm. Grey filed a motion to suppress evidence arguing that the initial search of his home violated his Fourth Amendment rights since the deputies used a pretext (assist the code enforcement officers with their inspection warrant) to conduct a criminal search of his home.

The trial court agreed with Grey and ruled that the deputies used an administrative warrant to enter Grey’s home without a criminal search warrant for the purpose of gathering evidence for their criminal case. The district court found several factors to support Grey’s contention. These same factors were recited by the Court of Appeal in their decision: 1) there was a criminal investigation initiated at the same time the inspection warrant was being sought; 2) the deputies had already concluded that Grey had violated the law by having a gun and using it; 3) the deputies concluded that they did not have enough evidence to support an arrest or a search warrant; 4) the deputies knew they would be asked by the city to assist with the execution of the inspection warrant; 5) the deputies never took time to develop their criminal case further once they knew of the inspection warrant; 6) the same deputies that were conducting the criminal investigation were the same ones being used for the inspection (warrant) search; 7) the deputies expected to interview Grey during the inspection warrant; 8) sending nine deputies to the search showed it was for criminal purposes; 9) the deputies arrested and questioned Grey prior to searching his place; 10) the “protective sweep” took almost twenty minutes and items were touched and moved in the house and 11) the deputies took pictures of incriminating items while they were in his house for the protective sweep. The trial court granted Grey’s motion to suppress the evidence.

Held: In their decision affirming the lower court, the Court of Appeals for the Ninth Circuit explained the necessity of probable cause in order for a search warrant to be issued. However, the necessity of probable cause is not required with administrative searches that are issued pursuant to a regulatory scheme as long as the searches meet reasonable legislative or administrative standards, i.e. an inspection of residential premises to ensure compliance with a housing code. The determination regarding the reasonableness of the warrant is usually an objective inquiry, except in the case of administrative searches and special needs searches. In these cases, the court will look for the “actual motivation” for the administrative search. The court will attempt to ascertain the “primary purpose” of the search: was the primary purpose of the search for a regulatory matter or was it for a criminal purpose? Here, the Court determined that the deputies’ execution of the inspection warrant was unreasonable under the Fourth Amendment since their “primary purpose” in executing the warrant was to gather evidence in support of its criminal investigation, rather than to assist the inspectors.

The Government argued that even though the deputies had an “impermissible motive” for the search, the sweep of Grey’s home would have occurred regardless, and the criminal evidence would have been discovered. Specifically, the deputies would have made the lawful observations when they were doing their protective sweep of the house. The Court was not persuaded by the argument and found that the degree of the deputies’ search (protective sweep) was intrusive. The Court further reasoned that their intrusiveness was motivated by their desire to find evidence of a crime and not a “quick and limited search of the premises…conducted to protect the safety of police officers or others.”

Significantly, the Court of Appeals focused upon the “primary object” or “primary purpose” test concerning administrative warrants for private residences. The Court cited to the Supreme Court decision, Michigan v. Clifford (464 U.S. 287 (1984)), in which the Supreme Court held [i]f the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched.” More importantly, the Court of Appeals disagreed with the Government’s position particularly since this case involved the search of a person’s home where privacy interests are exceptionally high. In addition, the Government was relied upon cases that did not involve private residences, but rather border searches, inventory searches, and commercial inspections of vehicles.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 21, available at


E. Officer statements summarizing suspect descriptions as similar or possibly matching in affidavit were not intentionally made false statements to obtain warrant.

People v. Miles, 2020 Cal. LEXIS 3443 (May 28, 2020)

Facts: In February 1992, Nancy Willem was found dead at her workplace at the Behavioral Health Services Clinic in Rialto. The door to the clinic was ajar and the reception area ransacked. Willem was found naked with a telephone cord tied to her wrist, with a handwritten note on top of her abdomen that read: “Feed the poor. Down with the goverenment [sic].” After securing the area and obtaining consent to search the clinic, the police collected blood and other bodily fluids from the reception area and office where Willem’s body was found. Willem was later determined to have been raped. The doctor who performed the autopsy concluded that that Willem was killed by a combination of blunt force injuries and manual strangulation. On the night of Willem’s death, her ATM card was used to withdraw $1,160 from an ATM in Pomona and another $300 from an ATM in Glendora.

A couple of months after Willem’s death, the police briefly stopped an individual who identified himself as Johnny Duane Miles (“Miles” or “defendant”) and was walking no more than half of a mile from Willem’s office. During the stop, the police documented that defendant was an African-American man who was 25 years old, six feet, six inches tall, and 210 pounds.

In June 1992, the police received a report that a “black male wearing a white T-shirt armed with a small handgun” had just committed a robbery and rape at a nearby office building in Torrance. Within minutes of the report, and in the general vicinity from which the suspect could have attempted to flee, two officers spotted defendant in his truck, appearing very nervous and matching the suspect’s general description. The officers unsuccessfully attempted to stop defendant, a chase ensued, and the officers shot and arrested him.

Once Detective Chester Lore learned about the arrest, he sought a warrant to search defendant, his residences, and his vehicle. Pursuant to the search warrant, the police collected, among other items, a sample of defendant’s blood and a note from his truck. That note read in part: “We’ll be wiped out by the governement [sic].” The note contained a misspelling of the word government, which was similar to the misspelling in the note found on Willem’s body.

The defendant moved to suppress this evidence before trial, but the trial court denied his motion. A San Bernardino County jury convicted defendant of burglary and first degree murder, first degree forcible rape, second degree robbery, and false imprisonment by violence of Nancy Willem. The jury found true the special circumstances that Willem was killed during the commission of the burglary, rape, and robbery and that the murder was intentional and involved the infliction of torture. The jury also convicted defendant of 10 additional counts related to two separate incidents and found true the enhancement allegations relating to those counts. Following the penalty phase, the jury reached a verdict of death. After denying defendant’s motion to modify the verdicts, the trial court sentenced defendant to death. An automatic appeal followed.

Held: The Supreme Court of California explained that “a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. The trial court must conduct an evidentiary hearing only if a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. … [T]he defendant must make his showing by a preponderance of the evidence, and the affidavit is presumed valid.” (People v. Scott (2011) 52 Cal.4th 452, 484.)

On appeal, defendant contended that the trial court erred because the affidavit contained misrepresentations and omissions regarding, among other things, the suspect descriptions. Before trial, Detective Lore testified regarding his affidavit, the search warrant, and the searches conducted pursuant to the warrant. Regarding the suspect descriptions, the Supreme Court observed that the trial court “[did] not find this information to be misleading or false, and [did] not find that defendant ha[d] met his initial burden of showing a knowing or intentionally false statement, or reckless disregard for the truth.”

The Supreme Court observed that Detective Lore’s affidavit described Willem’s death in Rialto and its apparent connection to a series of similar rapes and robberies committed throughout San Bernardino and Riverside Counties. The affidavit catalogued the similarities among the series of rapes and robberies, including that the crimes occurred on weekday evenings at professional offices, that several of the victims were bound with telephone cords, and that the suspect was described as a tall, Black man who was armed. The affidavit stated that “[t]he robberies also included a male Black that matched the physical description of the one that was described in two of the rape incidents.”[13] The affidavit also described the consistencies between these incidents and the rape and robbery for which defendant was arrested and described defendant as a tall, Black man with AB blood, which was consistent with the suspect descriptions and the forensic analysis.

Detective Lore testified that the suspect descriptions in his affidavit were based on the ATM photographs captured after Willem’s death, police reports, and victim interviews. From the ATM photos, Detective Lore estimated that the suspect was approximately six feet, five to six inches tall. The defense questioned Detective Lore’s characterization of the suspect descriptions amongst the incidents as similar or matching in his affidavit. However, when the prosecutor subsequently questioned Detective Lore, he confirmed that by the word “matched,” he did not mean to suggest that each victim’s suspect description exactly mirrored defendant’s height and weight. Rather, he meant that “[t]he descriptions given by the different witnesses and victims in this case, [were] within a couple of pounds or a couple of inches. And when I say a couple of pounds, 10, 20, 30.” He also confirmed that he included defendant’s height and weight in the affidavit to make the magistrate aware that discrepancies existed.

The Supreme Court found that substantial evidence supported the trial court’s finding regarding the suspect descriptions. The affidavit plainly stated the range of the suspect’s height as described by the victims, and in the immediately following sentence, set forth defendant’s actual height and weight. The affidavit therefore made clear the discrepancies between the suspect descriptions and defendant’s characteristics, as Detective Lore testified he intended to do. Considering this, the Court explained that the fact that he elsewhere in his affidavit summarized the suspect descriptions as similar or matching did not show that the detective made a false statement, much less made a false statement with an intent to deceive or a reckless disregard for the truth.

The Supreme Court similarly found that Detective Lore’s opinion that, based on his experience as a policeman, “Mr. Miles displays the physical characteristics as described by the majority of the victims in these cases” did not amount to an intentional or reckless falsehood, particularly since he testified that his experience as a policeman indeed taught him that victims were not always accurate in describing suspects. Nor did the Court find an intentional or reckless omission of material information regarding the suspect descriptions that, when added to the affidavit, rendered the affidavit insufficient to establish probable cause.

Thus, the Supreme Court found that the trial court did not err. Because the Supreme Court also found against defendant on the other issues he argued on appeal, the Supreme Court affirmed the judgment.



A. Trial court’s imposition of condition requiring intervening parties to strike their requests to recover statutory attorney fees pursuant to Code Civ. Proc. section 1021.5 was unreasonable and amounted to abuse of discretion.

Carlsbad Police Officers Ass’n v. City of Carlsbad, 2020 Cal. App. LEXIS 422 (4th Dist. May 18, 2020)

Facts: In 2018, the Legislature passed Senate Bill No. 1421[14] to expand public access to police records concerning the use of deadly or serious force and significant misconduct. The new law took effect on January 1, 2019. (Cal. Const., art. IV section 8(c); Government Code section 9600 (a).) Eight police officer associations (“POAs”) filed a petition for writ of mandate seeking to prevent their respective police agencies from disclosing pre-2019 records[15] of police misconduct or use of force pursuant to Senate Bill No. 1421, arguing that to do so would amount to impermissible “retroactive” application of the law. The petition named as respondents the cities of Carlsbad, Coronado, El Cajon, San Diego, National City, and Oceanside; the San Diego Unified Port District; the San Diego Unified School District; and the corresponding police chiefs (collectively, the “agencies”).

Section 387 of the Code of Civil Procedure permits a nonparty to intervene in a pending case, either as of right or permissively, when certain criteria are met. “An intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons…” (Section 387(b).) To encourage the pursuit of public interest litigation, Code of Civil Procedure section 1021.5 authorizes an award of attorney’s fees to the prevailing party.

The POAs requested a temporary stay barring disclosure of pre-2019 records. The agencies did not oppose their request. The trial court issued an alternative writ, set a March 1 hearing date, and entered a temporary stay.

Several media organizations and a civil rights group (collectively, “interveners”) moved to intervene. The trial court proceeded to allow intervention, but conditioned intervention on the interveners striking their request for attorney’s fees. The interveners filed their complaints in intervention, striking their requests for attorney’s fees. The trial court later agreed with the interveners on the merits that Senate Bill No. 1421 required disclosure of pre-2019 police records.[16] After the trial court issued a partial judgment denying the POAs’ petition for writ of mandate, the interveners appealed, challenging the attorney’s fees condition placed on their intervention.

Held: The California Fourth District Court of Appeal noted that Section 1021.5 codifies the judicially-created private attorney general doctrine. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1217–1218.) The Fourth District explained that, upon motion, a court may award attorney’s fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if the action: (1) enforced an important public right, (2) conferred a significant public benefit, and (3) is of a type that private enforcement was necessary, and the financial burden justifies subsidizing the successful party’s attorneys. (Whitley, at p. 1214.) The Court added that the third factor does not apply where, as here, a plaintiff’s action produces no monetary recovery.

The Court observed that although Section 1021.5 is phrased in permissive terms, a court’s discretion to deny attorney’s fees to a party that meets the statutory requirements of the statute is limited. (Lyons v. Chinese Hosp. Assn. (1st Dist. 2006) 136 Cal.App.4th 1331, 1344.) Unless special circumstances would render an award of 1021.5 fees unjust, fees must be awarded under the statute where the statutory criteria have been met. (Ibid.)

The Fourth District explained that Pasadena Police Officers Association v. City of Pasadena (2nd Dist. 2018) 22 Cal.App.5th 147, 159 (“Pasadena Police”) and City of Los Angeles v. Metropolitan Water District of Southern California (2nd Dist. 2019) 42 Cal.App.5th 290 (“Metropolitan Water”) had established that attorney’s fees were available under Section 1021.5 to a successful intervener seeking records disclosure in a reverse-PRA case. Like the courts in those cases, the Fourth District here found important public rights were implicated by the action. The Court explained that here there was no dispute that the release of police records concerning officer misconduct and use of serious force implicated a matter of public interest.

The Court maintained that the question before the Court was not whether the trial court abused its discretion in denying a request for attorney’s fees under Section 1021.5, as the POAs had contended, but whether the interveners could be barred from seeking attorney’s fees under Section 1021.5 as a condition of their intervention, as the trial court had done.

The Court explained that if leave to intervene is granted, “[t]he intervener becomes a party to the action with all of the same procedural rights and remedies of the original parties.”[17] Critically, the Fourth District explained, those procedural rights and remedies include the right to seek attorney’s fees under Section 1021.5 on equal terms with the original parties. (City of Santa Monica v. Stewart (2nd Dist. 2005) 126 Cal.App.4th 43, 87; People v. Investco Management & Development LLC (1st Dist. 2018) 22 Cal.App.5th 443, 458.)

The interveners had filed a series of records requests with the eight agencies, seeking pre-2019 police records pursuant to Senate Bill No. 1421. Through their mandamus petition, the POAs sought to prevent the agencies from releasing pre-2019 records pursuant to a PRA request. The Fourth District explained that “[a] successful reverse-CPRA lawsuit seeking to prevent a public agency from releasing information on the ground the requested disclosure is prohibited by law will necessarily affect the rights of the party requesting the information—a party whose interest in access to public records is recognized by California Constitution, article I, section 3, subdivision (b)(1), as well as the CPRA, and protected by specific provisions of the CPRA authorizing litigation to compel disclosure.” (Marken, supra, 202 Cal.App.4th at pp. 1269–1270.)

The Fourth District determined first that the interveners had direct interests in the subject matter of the litigation and therefore qualified for intervention of right, one of the two forms of intervention recognized by Section 387.

The Fourth District next explained that a trial court may place reasonable conditions on a nonparty’s intervention under Section 387, consistent with its inherent authority to ensure efficient case management. However, the Court found that conditioning intervention of right on forgoing otherwise appropriate requests for statutory attorney’s fees was unreasonable and amounted to an abuse of discretion by the trial court. The Fourth District noted that Section 1021.5 permits an award of attorney’s fees for litigation undertaken to serve an important public interest, as intervention here did. (Pasadena Police, supra, 22 Cal.App.5th at pp. 165–166; Metropolitan Water, supra, 42 Cal.App.5th at p. 303.) Once leave is granted, interveners stand on equal footing with the original parties, including their ability to request attorney’s fees pursuant to Section 1021.5. (Stewart, supra, 126 Cal.App.4th at p. 87.) As mentioned earlier, a court’s discretion to deny attorney fees under Section 1021.5 to a party that meets the statutory requirements is limited: fees must be awarded unless special circumstances would render an award unjust. The Fourth District Court of Appeal accordingly reversed the order and remanded for further proceedings to permit the interveners to seek reasonable attorney’s fees against the POAs pursuant to Section 1021.5.

B. A City’s efforts to redact electronic data prior to delivering responsive records in response to a Public Records Act request is not compensable.

Nat’l Lawyers Guild, S.F. Bay Area Chapter v. City of Hayward, 2020 Cal. LEXIS 3441 (May 28, 2020)

Facts: Demonstrations broke out in Berkeley as a result of the deaths of Eric Garner and Michael Brown. The Hayward Police Department provided mutual aid to Berkeley in policing during the demonstrations.

After the demonstrations, the National Lawyers Guild, San Francisco Bay Chapter (“NLG”) submitted an 11 item Public Records Act (“PRA”) request seeking among other things, electronic communications, logs, reports, etc. Responsive paper records were located, redacted appropriately, and were provided to NLG in .pdf format. NLG was not charged for these records.

Though not specifically requested in NLG’s PRA request, the custodian handling the request, located approximately 90 hours of body work camera (“BWC”) video footage which were believed to be responsive to the PRA. Contained within the BWC was medical and otherwise confidential data which would have to be redacted prior to production. The City asserted that redacting 90 hours of BWC video was overly burdensome. The City asked NLG to narrow its request. NLG obliged this request and focused on six hours of BWC footage. NLG was not charged for these efforts.

City staff then used free video editing software to remove exempt audio segments in order to create edited videos which were stored on a thumb drive. The effort in separating the audio, removing exempt audio from the file, reconfiguring the audio track and uploading the edited audio to the video took 35.3 hours. The City then invoiced NLG almost $3,000.00, which it paid, in protest, in order to receive the videos.

NLG filed a declaratory and injunctive relief action and a writ of mandate petition in Alameda Superior Court seeking a refund of the money paid to receive the videos. The trial court held that Government Code §6253.9, subdivision (b)(2) (“6253.9(b)(2)”), which states that a City may charge for the production of an electronic record if it requires “data compilation, extraction or programming to produce the record” did not include making a redacted version of an existing Public Record. The Court of Appeal reversed the trial court and held that the costs were compensable under 6253.9(b)(2). The Supreme Court disagreed.

Held: The California Supreme Court focused its analysis, in a 30-plus page opinion, on the meaning of the word “extraction” as set forth in Section 6253.9(b)(2). The term “extraction” is contained between the phrases “data compilation” and the word “programming”. The Court said, in the field of computing, the term “data extraction” does not include taking data out – it refers to a process of reviewing required or necessary data for a particular use.

Redacting data, on the other hand, is a common process in virtually every kind of public record, whether that record is in paper or electronic format. The court noted that the PRA does not allow for the cost of redacting a paper record to be charged to the requestor, so it did not make sense that a City could charge for the time spent redacting an electronic version of a document.

Indeed, the Court said the staff effort in viewing and redacting the video and audio content was not substantially different from using an electronic tool to draw black boxes over exempt material in an electronically formatted document.

Accordingly, the Court ruled that the shifting of costs uniquely associated with electronic records to a PRA requestor can only be done if there is a need to retrieve responsive data to produce a record but not the costs of redacting exempt information from the record.

The Court held the effort spent reviewing and redacting data from the video was akin to searching through a file cabinet for paper records, something an agency would clearly not be able to charge to a PRA requestor.

The Court’s decision was supported by the overall goal of the PRA, which is to “further the people’s right to access.” For many requestors, a charge of $3,000.00 for six hours of responsive video, would be cost prohibitive and would prevent access to public documents. The Court suggested that any unique burden placed on agencies in terms of redacting BWC footage should be directed to the legislature.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 19, available at



Equitable tolling doctrine did not apply because initial six-month presentation deadline under Government Claims Act was not a statute of limitations.

Willis v. City of Carlsbad, 2020 Cal. App. LEXIS 396 (4th Dist. Apr. 22, 2020)

Facts: James Willis, a peace officer since 2000, was hired by the City of Carlsbad (“City”) in 2008 as an officer with the Carlsbad Police Department (“Department”). In 2009 and 2010, he received exceptional performance ratings from his supervisors. In 2011, Willis applied for and was selected to be a detective in the Department’s crimes of violence unit. He again received exceptional performance evaluations.

In June 2012, Willis created a fictitious email account under a pseudonym and wrote a critical e-mail about another detective who worked in his unit, sending it to various government entities, public information officers, and news organizations. Willis admitted to writing the email several months later during an investigation about the email, and was reassigned to patrol in January 2013.

In April 2013, Willis received an exceptional performance rating for his work in 2012. However, he was also investigated and interviewed about the other officer’s possible misconduct referenced in his email. He received a written reprimand stating he had violated Department policy by failing to promptly bring his allegations to a Department manager or supervisor. Willis appealed the decision.

Willis applied two times in 2013 for open detective positions in the crimes of violence unit but was passed over in favor of other candidates. In March 2014, Willis was promoted to corporal. That same month, he missed receiving an overall exceptional performance review by one criterion. Willis received exceptional overall performance ratings on his next few evaluations.

In early 2015 at a meeting between the Department and the local police officer’s association,[18] Willis complained about a Department performance review program that he believed was an unlawful quota system. The management disagreed that the program was illegal.

In July 2015, Willis’s supervisors passed him over for a promotion to sergeant. In December 2015, Willis brought a complaint with the Department of Fair Employment and Housing as well as a government tort claim against the City, alleging he had suffered continued retaliation by the City and the Department. City deemed all acts occurring before June 29, 2015—six months before the date it received Willis’s claim—untimely as occurring beyond the six-month period in which to present a claim under the Government Claims Act (Government Code section 911.2). City denied Willis’s claim with regard to the July 2015 denial of promotion to sergeant.

In February 2016, Willis filed a complaint against the City, alleging in part that it engaged in whistleblower retaliation against him in violation of Labor Code section 1102.5(b) by denying him promotions after he reported the other officer’s purported misconduct and complained about the Department program he believed was an unlawful quota system. Pointing out he alleged he had a pending administrative complaint to the Labor Commissioner for the City’s January 2013 retaliation, Willis argued the six-month period for filing a government claim had been equitably tolled.

Before trial, the City successfully moved to strike allegations of other alleged retaliatory acts within Willis’s cause of action on grounds that he had not timely presented a government tort claim within six months of the acts as required by the Government Claims Act.

Thereafter, the trial court in limine excluded evidence of any violations by the City of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”, or the “Act”; Government Code section 3300 et seq.), while at the same time permitting the City to present evidence Department had denied Willis promotion because of his June 2012 email.

The jury returned a special verdict finding in favor of Willis that his reporting of the City’s violation of law was a contributing factor in the City’s decision to deny him promotion. However, the jury also found the City would have denied Willis his promotion in July 2015 anyway for legitimate independent reasons. The trial court therefore entered judgment in the City’s favor on the whistleblower retaliation claim. Willis appealed.

Held: On appeal, Willis argued, among other things, that that the trial court erred as a matter of law by striking portions of his Labor Code section 1102.5 cause of action because the Government Claims Act’s six-month statute of limitations was equitably tolled by his June 2013 retaliation complaint to the Labor Commissioner. This made, Willis argued, his December 2015 government tort claim timely as to the City’s actions.

The California Fourth District Court of Appeal explained that the equitable tolling of statutes of limitations is designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations—timely notice to the defendant of the plaintiff’s claims—has been satisfied. Where applicable, the doctrine will suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99.)

The Fourth District explained that the California Supreme Court in Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201 emphasized that—contrary to the deadline for filing a lawsuit after a Government Claims Act claim is acted upon or deemed denied—the initial claim presentation deadline is not a statute of limitations.

Here, the Fourth District thus determined that, contrary to Willis’s framing otherwise, the six-month period of Section 911.2 was not a statute of limitations to which tolling rules might apply. The Court explained that application of tolling to the claims presentation deadline would undercut the public policies and purposes that require that deadline be “strict[ly]” applied. (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991, fn. 8.) The Court added that the important policy considerations behind the claims statutes (giving a public entity prompt notice of a claim to permit early investigation and evaluation, as well as orderly fiscal planning for the protection of taxpayer funds) would not be served by tolling the government claim deadline while a plaintiff pursued other legal remedies against the government defendant.

The Fourth District thus concluded that the trial court did not err, and accordingly affirmed the judgment. 



Appellant’s conviction under Penal Code section 69 based on threatening speech was unconstitutional because his speech was not a ‘true threat.’

People v. Smolkin, 2020 Cal. App. LEXIS 432 (1st Dist. May 20, 2020)

Facts: In August or September of 2016, Deputy District Attorney Andrew Horvath of the Solano County District Attorney’s Office prosecuted Anatoly Smolkin for parole violations. One of the violations involved an incident during which Smolkin threatened to blow up a parole office building. Smolkin was found in violation of his parole and sentenced to 180 days in county jail.

Angry at the District Attorney’s Office for its handling of his parole violation case, Smolkin sent a two-page letter received by that office in February 2017 that stated, among other things, that Horvath had been “sentenced to death in Moscow for the crime of kidnapping a soldier of the armed forces of Russia.” The letter continued, “I warn you, if charges are not dropped, all perjured restraining orders lifted, my parole cancelled, I will charge, but effectively sentence, the entire Solano County DA’s office with kidnapping punishable by death by Russian military firing squad. Let me be crystal clear—I have no training in riflery or authorization to carry out an execution….” The letter also stated in small text in a margin, “It is clear to any rational person that I pose no threat to anybody.”

Horvath later testified that the letter made him afraid of Smolkin. Horvath said he did not literally believe he had been sentenced to death by a Russian military firing squad, but indicated that he feared for his safety from Smolkin himself. Horvath stated that as a result of the letter, he had installed a security system in his home, warned his wife to be vigilant, and told his children not to talk to strangers.

In July 2018, the Solano County District Attorney filed an information charging Smolkin with threatening a state official (Penal Code section 76(a)) and resisting an executive officer (Penal Code section 69). The information also alleged a prior strike and a prior prison term. In August 2018, a jury acquitted Smolkin of threatening a state official and convicted him of resisting an executive officer. Finding the enhancement allegations true, the trial court sentenced Smolkin to a total of seven years in state prison. Smolkin appealed.

Held: Penal Code section 69 provides in part: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law…is punishable by a fine […], or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail […], or by both such fine and imprisonment.” Smolkin argued on appeal that his conviction under Section 69 was unconstitutional.

The California First District Court of Appeal explained that certain well-defined and narrowly limited classes of speech are not within the First Amendment’s free speech protections, including what the United States Supreme Court had described as “true threats.” (People v. Lowery (2011) 52 Cal.4th 419, 423.) In Watts v. United States (1969) 394 U.S. 705, the United States Supreme Court made clear that the Constitution mandates that statutes punishing the making of threats must be applied only to true threats. (Watts, at p. 708; see also In re M.S. (1995) 10 Cal.4th 698, 712.) In People v. Superior Court (Anderson) (1st Dist. 1984) 151 Cal.App.3d 893, the First District had previously acknowledged that the holding in Watts applied to Section 69. (Anderson, at p. 896.) Thus, a conviction under Section 69 based on threatening speech, the First District here explained, was unconstitutional if the speech was not a “true threat.”

The Court explained that “‘[t]rue threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (Virginia v. Black (2003) 538 U.S. 343, 359; accord, Lowery, supra, 52 Cal.4th at p. 427.) In Lowery, the California Supreme Court followed Virginia v. Black in construing a statute relating to threats of violence against a crime witness or victim “as applying only to those threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence’ [citation], rather than an expression of jest or frustration.” (Lowery, at p. 427; accord, People v. Chandler (2014) 60 Cal.4th 508, 522.)

The First District concluded that, as a matter of law, a “reasonable listener” would not have understood Smolkin’s February 2017 letter to be a true threat because of the combination of three factors: first, Smolkin’s threats were “patently delusional”; second, he threatened violence by third parties (i.e. Russian military authorities) who were not (except in his delusion) his associates; and third, Smolkin’s letter included repeated assurances that he was not threatening to personally commit violence.

As to the third factor, the Court explained that the disclaimers would have signaled to a reasonable listener that Smolkin was not making a serious threat of violence, especially in light of the delusional nature of the threatened violence and the lack of any threatened conduct by actual associates of Smolkin. Those circumstances left Smolkin as the only possible violent actor, and the letter repeatedly disclaimed any such intent.

The Court noted that it did not conclude that a delusional threat could never constitute a true threat, but it observed that the People failed to identify any case approving the criminal prosecution of a person for a patently delusional threat. The cases cited by the parties involved implied threats, hyperbolic threats, improbable threats, vague threats, or metaphorical threats—not delusional threats. Nor had the People pointed to any evidence that Smolkin had committed violent acts in the past.

The First District Court of Appeal thus concluded that criminally sanctioning Smolkin on the basis of the February 2017 letter was unconstitutional as a matter of law, and accordingly reversed the trial court’s judgment.


[1] The emergency rules related to the COVID-19 pandemic, including Emergency Rule 4, are set out in the California Rules of Court, Appendix I.

[2] The exceptions to the statewide Emergency Bail Schedule, set forth in Emergency Rule 4(e)(1), are not at issue here.

[3] The order also required that the prosecuting agency provide a list of such objections to defense counsel by the same date and time. Under the order, the prosecution and defense counsel must meet and confer regarding the objections within 24 hours. If the parties subsequently agree that a person could be released on zero bail under the Emergency Bail Schedule, he or she shall be released by the sheriff. If the parties agree that a person could be released on increased bail, or subject to conditions, the parties shall submit a stipulation and proposed order to the court to that effect and notify the sheriff. If the parties cannot agree, and the defendant has not yet been arraigned, “the prosecuting agency shall put the matter on the video-court calendar commencing Monday, April 20, 2020, or as soon as practical thereafter, for arraignment and bail review.” In all other cases where the parties cannot agree, “the matter will be reviewed by a judicial officer via telephone conference as soon as practical.”

[4] Miranda v. Arizona, 384 U.S. 436 (1966).

[5] People v. Benson, 802 P.2d 330, 345 (Cal. 1990).

[6] People v. Benson, 802 P.2d at 344.

[7] Id. at 345.

[8] See United States v. Dorais, 241 F.3d 1124, 1129 (9th Cir. 2001).

[9] See United States v. Dorais, 241 F.3d 1124, 1128 (9th Cir. 2001) (citing United States v. Henderson, 241 F.3d 638, 647 (9th Cir. 2000)).

[10] See United States v. Taketa, 923 F.2d 665, 669-70 (9th Cir. 1991).

[11] After the jury’s verdict, defendant posted a picture on social media of a fictional movie character eating flesh and said, “I hope [Allison] chokes on whatever pound of flesh she may have received from having pursued this matter.”

[12] Later on, during an evidentiary hearing, this was at issue regarding Grey’s status when he was initially contacted by the deputies at his home and was placed into the back of the police car prior to anyone entering the house. During the hearing, the deputy stated that Grey was not arrested but rather was only being detained. However, the sergeant admitted that in his report he stated that Grey was arrested when he was initially contacted that day.

[13] Here, the affidavit is not referring to Willem’s rape incident, but to two others not described here.

[14] Stats. 2018, ch. 988 section 2.

[15] In a “reverse-PRA” action, such as the POAs’ petition for writ here, an interested third party seeks a judicial ruling precluding a public agency from disclosing allegedly confidential documents pursuant to the California Public Records Act (Government Code section 6250 et seq.) (“PRA” or “CPRA”). (See Marken v. Santa Monica-Malibu Unified School Dist., 202 Cal.App.4th 1250, 1267 (2nd Dist. 2012).)

[16] An appellate court later reached the same conclusion in a different case, Walnut Creek Police Officers’ Association v. City of Walnut Creek, 33 Cal.App.5th 940, 941–942 (1st Dist. 2019).

[17] Catello v. I.T.T. General Controls (3rd Dist. 1984) 152 Cal.App.3d 1009, 1013–1014. See also Savaglio v. Wal-Mart Stores, Inc. (1st Dist. 2007) 149 Cal.App.4th 588, 602–603; 4 Witkin, Cal. Proc. (5th Ed. 2008) Pleading, section 226.

[18] Willis had been elected president of the association by the time of the meeting.