CPOA CASE SUMMARIES – NOVEMBER 2018

CONSTITUTIONAL LAW

Traffic stop was not unconstitutionally prolonged by dog sniff where the motorist was cited for a tinted-window infraction, and the dog alerted to drugs in the vehicle; thus, no suppression was required.

People v. Vera, 28 Cal. App. 5th 1081 (4th Dist. 2018)

Facts:  In June 2017, defendant Esteban Vera was pulled over by City of Rialto Police Detective Joseph Maltese for driving with illegally tinted windows, a violation of Vehicle Code section 26708 (a). Approaching the car, the detective could not see through the darkly tinted rear window and Vera himself was only visible through the driver’s side rearview mirror. Vera refused to drop his rear window upon the officer’s request. Concerned for his own safety, Maltese ordered Vera out of the car. Maltese found an apparent switchblade knife in Vera’s pocket during a patdown search. After Maltese obtained Vera’s driver’s license and vehicle registration information, another officer named Garcia arrived. While Garcia kept a watch on Vera, Maltese performed a records check and verified the knife was not an illegal switchblade. The records check showed no outstanding warrants.

Maltese had a narcotics-certified dog in the car. Maltese asked Officer Garcia to write the tint violation citation. Maltese’s body camera record showed that it took Maltese 32 seconds to go to his own patrol car, get his citation book and his dog, and give the citation book to Officer Garcia (who started writing the citation). During these 32 seconds and for about 40 seconds after he gave Garcia his citation book, Maltese repeatedly asked Vera for consent to search the car, but Vera repeatedly replied no. At Vera’s vehicle, the dog alerted on the trunk, and then alerted again on the interior dashboard. At the time that the dog was examining the car, Officer Garcia was still writing the citation. With the dog’s alerting assistance, Maltese inspected these areas of the car and found bags containing methamphetamine weighing over 4.5 kilograms.

Vera was charged with felony possession for sale of a controlled substance. Vera moved to suppress the drug evidence, arguing, among other things, that his traffic stop was unreasonably prolonged under Rodriguez v. United States. After viewing the excerpt of the video of the stop from Maltese’s body camera and hearing testimony from Maltese, the trial court denied the motion. Vera later pled no contest to an amended information alleging possession of one kilogram of a controlled substance, reserving his right to appeal. He received a custody term of five years, of which two years were suspended and mandatory supervision by the probation department imposed. Vera appealed.

Held: Vera argued on appeal that the methamphetamine found in his car must be suppressed because the dog sniff was unreasonably prolonged his traffic stop, in violation of Rodriguez. However, the California Fourth District Court of Appeal affirmed, finding that the dog sniff did not unconstitutionally prolong the traffic stop.

The Court explained that the Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, but that “an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law.” During such a stop, police can use a trained dog to sniff the detained driver’s vehicle without implicating the Fourth Amendment; a dog sniff is not a search at all. Still, courts have limited constitutional application of a dog sniff performed in tandem with a traffic stop, a subject the United States Supreme Court discussed in Rodriguez.

The federal court of appeals held the extension of the stop did not violate the Fourth Amendment, holding that it was too short a time to bear weight on the matter. The Supreme Court disagreed, explaining that a dog sniff was outside of the “mission” of a traffic stop, which is to address the traffic violation as the basis for the stop. The purpose of a dog sniff, however, is to detect evidence of ordinary criminal wrongdoing, and “is not fairly characterized as part of the officer’s traffic mission.” The Rodriguez Court explained that because a traffic stop may not last longer than necessary to effectuate the traffic stop mission, a seizure is lawful only until the point when the traffic stop mission is completed or reasonably should have been completed. The Court held that a seizure of a driver becomes unlawful when a suspicionless dog sniff prolongs the detention beyond that point. Rodriguez also declared that the permissible duration of the stop is measured by the amount of time necessary to perform the stop efficiently. Rodriguez thus found that the “critical question … is not whether the dog sniff occurs before or after the officer issues a ticket … but whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the stop.’”

Applying Rodriguez to the stop of Vera here, the Fourth District observed that, except for Maltese’s investigation of Vera’s potentially illegal switchblade, Maltese’s actions until the point when he asked Officer Garcia to write the citation were clearly within the mission of the traffic stop. As for the time to investigate the switchblade, that was a lawful prolongation of the stop because the prolongation was supported by independent reasonable suspicion.

The Court next considered the period beginning with Maltese asking Officer Garcia to write the citation. The Court explained that the “yardstick for measuring whether the dog sniff prolonged Vera’s detention is the length of time of that detention had Maltese written the citation himself without the dog sniff.” The Court noted that the mission of the traffic stop was not finished when the dog sniff began because the citation had not yet been written. It only took 32 seconds for Maltese to retrieve the citation book and the narcotics-trained dog and give the book to Officer Garcia. The Court deemed this quick enough to conclude it would have taken the same time for Maltese to get the book for himself, rather than hand it off to Garcia. Thus, up to this point also, the Court found that the dog sniff did not prolong the stop.

Maltese testified that Officer Garcia was still writing the citation when the dog alerted. There was no evidence supplied to the contrary. Once the dog did so during a so-far lawful stop, the sniff provided independent reasonable suspicion to investigate further, much like the finding of the switchblade earlier. The Court noted that Vera could have demonstrated that the dog alert came at the time at which the citation reasonably should have been issued if there hadn’t been any dog sniff, but Vera did not do so. Because the only evidence suggested that the dog sniff happened before Garcia had written the citation, the dog sniff did not unconstitutionally extend the length of Vera’s detention. Accordingly, the Fourth District affirmed the trial court’s denial of the motion to suppress the drug evidence.

POLICE CONDUCT

Trial court erred when it ruled the county did not owe a duty of care where sheriff’s department undertook the responsibility of rescuing a decedent and signaled that it was taking control of the rescue.

Arista v. Cnty. of Riverside, 29 Cal. App. 5th 271 (4th Dist. 2018)

Facts: According to the allegations in the second amended complaint (SAC), Andres Marin left at approximately 6:30 a.m. on March 1, 2014 for a 55-mile mountain bike ride to the peak of a mountain in Cleveland National Forest. He was expected by his wife, Christyna Arista, to return to his home at about 2 p.m. that day. At 3 p.m., Marin had returned home. Arista called Marin’s cell phone and sent him texts without reply until Marin and his wife finally spoke at 5:14 p.m. He said he had he had fallen and was injured, but that he had reached the summit and was returning home. Marin sounded disoriented and confused. After trying unsuccessfully to contact a Ranger Station and the Cleveland National Forest Service, Arista called 911 at 5:36 p.m. At 6:30 p.m., Corona police arrived at Marin’s residence. Arista told the police about Marin’s injury, his planned route, the amount of clothes he had on, and gave them photos of Marin. At 8 p.m., Riverside County Sheriff’s Department (“Department”) police arrived. Arista repeated the information she had given to Corona police.

The Department had Verizon ping Marin’s cell phone, which revealed his phone was located near the mountain peak. The Department established an “Incident Commander” for the case, posted deputies at different trailheads, and told Verizon employees working near the mountain peak to be “vigilant for [Marin’s] location.” At 10 p.m., Arista was spoke to a recently-arrived Department officer, possibly the Incident Commander, who described himself as the “Lieutenant in charge.” After expressing doubts about the need for law enforcement involvement to another officer privately, the Incident Commander told Arista that the Department’s search for Marin would begin in the morning. The Department advised Arista not to try to search on her own, but Arista organized a more immediate search on foot with other family members. A member of a trained volunteer group engaged in the search in the early morning of March 2, and eventually found Marin dead from hypothermia.

Arista and family (collectively, “Arista”) sued Riverside County for wrongful death, negligence, negligent infliction of emotional distress, and a deprivation of constitutional rights. For the wrongful death cause of action, Arista alleged that the County assumed the responsibility of searching for Marin and rescuing him when the Department officers took charge. The trial court sustained the County’s demurrer to the plaintiffs’ SAC without leave to amend, concluding that the County had no duty to rescue Marin. Arista appealed.

Held:  The California Fourth District Court of Appeal held that the County owed a duty of care and the trial court thus erred in ruling that the County had no such duty. In general, the Court explaine, a person who did not create a danger has no duty to come to the aid of another, regardless of the severity of the danger the other person faces, or how easily the rescue could be accomplished, unless there is some relationship between them which gives rise to a duty to act. This general rule applies to police officers too: “The police owe duties of care only to the public at large and, except where they enter into a ‘special relationship,’ have no duty to offer affirmative assistance to anyone in particular.” A special relationship arises “‘when the state, through its agents, voluntarily assumes a protective duty toward a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance.’” (Williams v. State of California (1983) 34 Cal.3d 18, 24 (Williams).) One who voluntarily comes to the aid of another “is under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” (Id. At p.23.)

The Court found that the Department was “actively involved in all aspects of locating” Marin by pinging the cell phone, gathering information from Arista, dealing with Verizon employees, placing deputies at the trailheads, and specifying a time start searching for Marin. Moreover, by appointing an Incident Commander for the case, the Department “signaled that it was taking control of the rescue.” Thus, the Department had the duty to exercise due care in conducting the rescue, including following through in a reasonably way after inducing reliance on the rescue. Noting that Arista did not begin organizing her own search until after finding out that the County would delay its efforts until the next morning, the Court found that Arista had been relying on the County’s search efforts. The Court thus concluded that the Department owed a duty of care. Because the County only argued in its demurrer that the County had no such duty, the Court reversed judgment on the wrongful death, negligence, and negligent inflection of emotional distress causes of action.

Arista also set forth a deprivation of civil rights cause of action in the form of a Monell v. New York City Dept. of Social Services claim. This was based on the allegation that the County did not sufficiently or properly train its search and rescue personnel. The Fourth District explained that Monell provides that a governmental entity may only be held liable where the entity causes a constitutional violation. To establish Monell liability, a plaintiff must allege facts supporting a finding of deliberate indifference by policymakers in a policy such that there exists a causal link between the policy’s execution and the injury suffered.

Here, the Court found that Arista did not offer such supporting facts, because Arista’s own allegations showed that hundreds of searches were performed in Riverside County, yet Arista did not allege any problems with those searches. As a result, the Court could not find that the County exhibited deliberate indifference by way of a policy with so many uncontroverted searches performed. Thus, the Court found Arista’s Monell claim was unworthy, and the Court concluded that the trial court did not err in sustaining the County’s demurrer on the deprivation of civil rights claim.

The Court also noted Arista did not propose how they would amend the SAC to show deliberate indifference by the County, so the Court concluded the trial court did not err by denying Arista leave to amend the Monell claim. Thus, the Court of Appeal reversed for the wrongful death, negligence, and negligent infliction of emotional distress causes of action, and affirmed in all other respects.

POBRA

Protections under the Public Safety Officers Procedural Bill of Rights Act do not apply to the termination of career executive assignment positions as a matter of law.

Manavian v. Department of Justice, 28 Cal. App. 5th 1127 (3rd Dist. 2018)

Facts: In March 2006, Edward Manavian was terminated from his position as chief of the Criminal Intelligence Bureau (“Bureau”), which was established within the Department of Justice’s (DOJ) Division of Law Enforcement (Division) after the September 11, 2001, terrorist attacks for the purpose of improving intelligence sharing. Part of Manavian’s CEA job description was to cooperate with local, state, and federal law enforcement agencies in combating terrorism and related criminal activity. However, Manavian’s relationships with these agency decision-makers was poor. For example, the California Office of Homeland Security director and deputy director refused to work with Manavian and told Manavian’s superiors about Manavian’s offending conduct. Manavian also had a contentious relationship with his direct superior, Richard Oules. Oules decided to terminate Manavian’s CEA position because of his dysfunctional relationship with federal and state representatives and because of Manavian’s hostility toward Oules. Manavian was reassigned to the Bureau of Narcotic Enforcement as an assistant bureau chief.

Manavian’s role at the Bureau was of a type known as a career executive assignment, or CEA. A CEA is an appointment to a high-level policy influencing position in the top managerial levels of state service. The CEA statutes are intended to encourage the use and development of well-qualified selected executives. (Campbell v. State Personnel Bd. (1997) 57 Cal.App.4th 281, 293.) The Legislature deemed a certain degree of flexibility necessary for this high level, and therefore determined that an individual employee enjoys no tenure in a CEA, and that the appointing authority may terminate a CEA without cause. Government Code section 19889.2 declares that the rights conferred in CEA positions are the rights of all civil service employees relating to punitive actions, except that the termination of a CEA is not a punitive action.

As a chief designated as a peace officer by the Attorney General, Manavian was also entitled to the protections of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”) (Government Code section 3300 et seq.) Under POBRA, peace officers have certain protections pertaining to the investigation, interrogation, and administrative appeal of punitive actions.

Manavian filed suit claiming in part that his termination was a punitive action protected by POBRA. The trial court granted summary adjudication for the State of California. Manavian appealed.

Held: The California Third District Court of Appeal concluded that the provisions of POBRA do not apply to the termination of a CEA position.

The Court noted that POBRA is intended to maintain stable law enforcement employer-employee relations and thereby assure effective law enforcement. “POBRA requires that law enforcement agencies throughout the state afford minimum procedural rights to their peace officer employees … POBRA’s procedural protections were intended to ‘balance the public interest in maintaining the efficiency and integrity of the police force with the police officer’s interest in receiving fair treatment.’ (Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 909[].)” POBRA defines “punitive action” as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” (Government Code, section 3303.) POBRA provides rights pertaining to investigation, interrogation, and administrative appeal of punitive actions.

The Court did not find POBRA’s punitive action provisions applicable to CEA terminations. The Court observed that “Section 19889.2 provides in pertinent part: ‘The provisions of this part relating to punitive actions shall apply to all employees serving in career executive assignments, except that termination of a career executive assignment [] is not a punitive action.’” The Third District explained that “POBRA gives officers certain rights when an employer is taking a punitive action, but in accordance with section 19889.2, termination of a CEA is not a punitive action, thus POBRA rights do not apply. Section 19889.2 thus provides an express exception to [POBRA’s] Section 3303, subdivision (b) for the termination of a CEA.”

The Court further observed that POBRA does not include provisions for a CEA termination, and that the Legislature provided an express exception to punitive actions in Section 19889.2. This reading the Court viewed as harmonious with the need for flexibility in CEA positions. The Court noted that “to read an exception into the CEA statutes for peace officers [as Manavian’s argument would suggest] … might well result in an institutional reluctance to use peace officers in CEA positions, which would be an undesirable and unreasonable result.” The Third District Court of Appeal accordingly affirmed.

PUBLIC EMPLOYMENT

Under U.S.C. section 630(b), state and local governments are ‘employer[s]’ covered by the ADEA regardless of their size.

Mount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22 (2018)

Facts: The Mount Lemmon Fire District (“District”), an Arizona political subdivision facing a budget shortfall, terminated the employment of firefighters Dennis Rankin and John Guido. Guido and Rankin filed suit, alleging violation of the Age Discrimination in Employment Act of 1967 (ADEA). The District sought dismissal, arguing that it was too small to qualify as an “employer” under the ADEA’s definitional provision, 29 U. S. C. section 630(b) (“Section 630(b)”). This provision reads: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . .. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . ..”.  The issue thus focused on whether the twenty-person threshold for ADEA protection requirements applied to state entities like the District, i.e. the meaning of “also means” in Section 620(b).

The Ninth Circuit concluded that Section 630(b)’s two-sentence delineation, and the expression “also means” at the start of the second sentence, combined to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation. In other words, ADEA protections were enjoyed by employees of state entities, including their political subdivisions, regardless of the number of persons employed.

Held: The United States Supreme Court held affirmed, holding that Section 630(b)’s two-sentence delineation, and the expression “also means” at the start of the second sentence, combine to establish distinct categories: persons engaged in an industry affecting commerce with a minimum of twenty employees; and States or political subdivisions “with no attendant numerosity limitation.” Thus, the numerical limit only applied to the first category.

The Court explained first that the ordinary meaning of “also means” is “additive rather than clarifying.” The Court cited as an example EEOC v. Wyoming, which read similar language additively to create a separate category of “employer.” There, the Supreme Court described a 1974 amendment to the ADEA as “extend[ing] the substantive prohibitions of the Act to employers having at least 20 workers [as opposed to 25 in the original version], and to the Federal and State Governments.” Id., at 233 (emphasis added). The Court here added that it was undisputed that the ADEA covers Federal Government entities, which Wyoming grouped with state entities, without regard to their number of employees.

The Court explained that Title VII was not a good comparison for the ADEA in this matter because of their differing statutory language. Rather, the Court found a more appropriate comparison with the Fair Labor Standards Act (FLSA), “on which many aspects of the ADEA are based.” The FLSA also views States and political subdivisions as employers regardless of the number of employees they have, further supporting the additive reading of “also means” in Section 630(b).

The Court thus concluded that there was “scant room for doubt” that state and local governments are “employer[s]” subject to the ADEA regardless of their size. The Supreme Court accordingly affirmed the Ninth Circuit’s judgment.

MISCELLANEOUS

  1. People v. Romanowski did not limit the type of evidence that might be required to show fair market value for stolen debit cards; the balances on such cards can be relevant evidence of their fair market value in a court’s assessment of whether Proposition 47’s $950 maximal limit for misdemeanor resentencing is exceeded.

Caretto v. Superior Court, 28 Cal. App. 5th 909 (2nd Dist. 2018)

Facts: In May 2011, police detained Paul Caretto as part of an attempted robbery investigation. The police found methamphetamine when they searched Caretto. They also found two stolen debit cards, and a stolen driver’s license, all stolen from a single person. In August 2011, Caretto pleaded no contest to receiving stolen property for the stolen debit cards and stolen license, and to methamphetamine possession. Caretto admitted three 1-year prison prior allegations pursuant to Penal Code section 667.5(b), that were added in the amended information. He was sentenced to four years in prison and execution of the sentence was suspended. He was granted four years of probation but never saw his probation officer and was later caught with burglary tools.

During a probation violation hearing in May 2015, Caretto petitioned for the receiving stolen property and possession charges to be reduced to misdemeanors under Proposition 47, as implemented in Penal Code section 1170.18. Caretto alleged that the value of the stolen property was under $950 (as required for Proposition 47 resentencing), but he did not identify the stolen property nor produce any evidence showing the value of the stolen property was below $950. The People opposed, arguing the value of the stolen debit cards was the amount of funds available in the two linked bank accounts. The People produced an email from the detective who initially investigated the case that stated the victim said that the amount that could be withdrawn from the two debit cards was between $1,500 and $1,800. The trial court denied Caretto’s resentencing motion.

Caretto filed a writ of mandate. The California Second District Court of Appeal later denied Caretto’s writ, agreeing with the People that the stolen property should be valued based on the fair market value, and that the only evidence pertaining to the value was the victim’s statement via email that the combined accounts had more than $950 in them. The Supreme Court of California transferred Caretto’s subsequent petition for review to the Second District with directions to reconsider the matter in light of the California Supreme Court’s 2017 ruling in People v. Romanowski.

Held: The Second District explained that Romanowski confirmed that Penal Code section 484’s “reasonable and fair market value” test was the appropriate basis to evaluate the $950 value threshold for theft crimes. Romanowski held that the fair market value for stolen access card information is measured by “how much [the] stolen access card information would sell for,” which could include “evidence concerning the potential for illicit sale of the access card information.” Romanowski explained that the proper estimation would reflect a reasonable approximation of the stolen information’s value, instead of the value of what a defendant obtained using that information. The Second District explained a court is required by Romanowski to assess how much the stolen debit cards would sell for in determining fair market value of the stolen cards.

The Second District held that the trial court was entitled to use the victim’s statement to infer that the stolen debit cards would have been valued in the marketplace at or near the balances in the linked accounts. Here, that meant the linked cards were valued at $1,800, their highest market value. The Court explained that actual fraudulent charges, balances in linked accounts, and expert testimony on illegal market valuation of stolen cards could be considered by a court to determine the reasonable and fair market value.

The Court observed that Romanowski provided critical guidance about stolen debit card valuation and was decided after the trial court proceedings. The Court granted Caretto’s petition and remanded to give him a chance to use this guidance to present evidence to rebut the People’s evidence.

  1. Plea agreement incorporates subsequent changes in the law so long as Legislature intended those changes to apply; thus, defendant entitled to juvenile fitness hearing and, if necessary, a Prop 57 resentencing hearing.

People v. Baldivia, 28 Cal. App. 5th 1071 (6th Dist. 2018)

Facts: In March 2015, 17-year old Francisco Javier Baldivia committed a series of crimes. For the 18 months prior to his March 2015 offenses, Baldivia had several criminal adjudications. Despite his juvenile status, Baldivia was charged in adult criminal court by a direct-filed amended complaint with several counts. In May 2016, Baldivia entered into a plea agreement in a direct-filed adult criminal proceeding though he never had a juvenile fitness hearing. Under the agreement, he pled no contest to four counts and admitted various enhancement allegations, including Penal Code section 12022.53 firearm enhancement allegations, in exchange for an agreed prison sentence of 17 years four months and the dismissal of other counts and enhancement allegations. In June 2016, the criminal court imposed the prison sentence, which included 13 years four months for the firearm enhancements. The court dismissed the other counts and allegations, and Baldivia timely filed a notice of appeal challenging only post-plea proceedings. He did not request a certificate of probable cause.

Proposition 57, which bars direct-filed adult criminal proceedings for juveniles and requires a juvenile fitness hearing before a juvenile case may be transferred to adult criminal court, took effect on November 9, 2016 during the pendency of Baldivia’s appeal. The firearm enhancement statutes were also amended to grant trial courts discretion to strike such enhancements. Baldivia appealed, arguing that he was entitled to a remand for a juvenile fitness hearing. He further argued that if he was then found unfit for juvenile court and transferred to adult criminal court, he was entitled to a resentencing hearing at which a trial court could exercise newly granted discretion (authorized by Senate Bill No. 620) to strike the firearm enhancement.

Held: The California Sixth District Court of Appeal explained that “plea agreements are deemed to incorporate changes in the law. “[T]he general rule in California is that the plea agreement will be ‘“deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. …”’  That “the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.” (Doe v. Harris (2013) 57 Cal.4th 64, 66.)

The Sixth District cited Harris v. Superior Court, in which the California Supreme Court applied Doe to a plea agreement that had been entered into before the enactment of in Proposition 47’s misdemeanor resentencing provisions. Harris viewed the issue as whether the electorate intended the Prop. 47’s changes to apply to the parties to the previously entered plea agreement. Because Proposition 47 explicitly applied to convictions obtained by plea, the Harris Court found that the electorate had intended for the change to apply to plea agreements. Here, the Court of Appeal explained that, under Doe and Harris, a plea agreement is thus “deemed to incorporate subsequent changes in the law so long as those changes were intended by the Legislature or the electorate to apply to such a plea agreement.”

Finally, both parties here agreed that under People v. Superior Court (Lara), an “inference of retroactivity” required both Proposition 57 and Senate Bill No. 620 be applied to all judgments that were not final when those laws took effect. The Court concluded that this inference applied because each either expressly contemplated retroactive effect or implicitly incorporated the inference by not stating otherwise (or both, in the case of Senate Bill No. 620). In either case, the consequence was retroactive application for defendants like Baldivia here.

Accordingly, the Sixth District reversed, and remanded with instructions for the juvenile court to hold a transfer hearing. If Baldivia was found unfit for juvenile treatment, the matter should be transferred to adult criminal court, and that court must hold a resentencing hearing with discretion to strike the firearm enhancements.