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CONSTITUTIONAL LAW

1. Given the nature of defendant’s offense, there was a relationship between theft of electronic devices and the imposition of an electronic device search condition.

People v. Patton, 41 Cal. App. 5th 934 (2019)

Facts: In January 2018, Kayvon Patton and three companions stole four cell phones, two Apple watches, an Ipad Pro, and Samsung Gear VR from an electronics store. Fingerprint and surveillance camera footage led police to identify Patton as one of the four men.

Patton pled guilty to felony grand theft of personal property[1] as part of a plea agreement whereby he would receive formal probation and pay restitution of $4,620. As part of the plea agreement, he agreed to “give up my right to appeal … any sentence stipulated herein.” Another part of the form agreement stated, “As conditions of probation I may be given up to a year in jail custody, plus the fine, and any other conditions deemed reasonable by the Court.”

In a subsequent conversation with a probation officer prior to sentencing, Patton stated he “was just following” friends from school and “the streets” and had pawned the phone he stole for $550 to purchase Norco pills. Patton has a history of substance abuse of Norco and other substances. He began to take Norco pills at age 15, and up until his arrest, took Norco pills daily. Also before Patton’s sentencing, the store manager told the probation department that he believed the same individuals had burglarized the store a second time months after the admitted theft.

At the sentencing hearing in July 2018, the judge imposed three years of formal probation under various conditions with a stay of 240 days in local custody pending successful completion of probation. Among the conditions of his probation was a condition subjecting his electronic devices to warrantless search when required by a probation officer or law enforcement officer. Patton appealed, challenging this condition as unreasonable under People v. Lent (1975) 15 Cal.3d 481. He did not request a certificate of probable cause.

In its initial hearing, the California Fourth District Court of Appeal rejected the People’s argument that Patton’s appeal should be dismissed for failure to obtain a certificate of probable cause, and then concluded the electronics search condition was valid under Lent and not overbroad. Thereafter, the California Supreme Court issued In re Ricardo P. (2019) 7 Cal.5th 1113, clarifying when an electronics search condition is reasonably related to the probationer’s future criminality under Lent. The Fourth District then granted Patton’s petition for rehearing and allowed both parties to file supplemental briefs concerning the effect of Ricardo P.

Held: The Fourth District Court of Appeal first again found that Patton did not need a certificate of probable cause to challenge the electronics search condition on appeal.

Patton challenged the probation condition requiring him to “submit person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices to search at any time with or without a warrant, and with or without reasonable cause, when required by [a probation officer] or law enforcement officer.” (Italics added.) The Court of Appeal explained that a probation condition is not invalid under Lent unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The Court added that all three prongs must be satisfied before a reviewing court will invalidate a probation term. (See People v. Olguin (2008) 45 Cal.4th 375, 379, quoting Lent, supra, 15 Cal.3d at p. 486.)

Regarding the first Lent prong, Patton contended that the electronics search condition did not relate to his crime merely because he happened to steal electronics. He suggested the essence of his crime was stealing something of value to support a drug habit. The Court disagreed, noting that Patton did not jewelry or other personal property, but specifically stole electronic devices. The Court found that given the nature of Patton’s offense, there was a relationship between theft of electronic devices and the imposition of an electronic device search condition. Thus, the Court found the first Lent prong was not satisfied, and accordingly held that the search condition was reasonable under Lent.

The Court added that Ricardo P. did not categorically invalidate electronic search conditions. Moreover, Ricardo P. approved of In re Malik J. (2015) 240 Cal.App.4th 896, where the court upheld an electronics search condition as to a defendant convicted of stealing cell phones, finding the condition enabled probation officers to determine whether a cell phone on his person was stolen. The Court concluded that Ricardo P. did not alter the Court’s Lent analysis, thus preserving its holding that the electronic search condition was reasonable. Accordingly, the Fourth District affirmed.

1. Exigent circumstances supported seizure of defendant’s vehicle dash camera when facts suggested it contained evidence of reckless driving and defendant’s conduct indicated he would attempt to destroy its contents.

People v. Tran, 42 Cal. App. 5th 1 (4th Dist. 2019)

Facts: In November 2016, Robert Kien Tran was involved in a vehicular collision with a motorcycle when his vehicle crossed a double yellow line on a sharp curve in the road. At the time of the accident, the motorcycle rider sustained serious injuries, and it was believed that he could die from those injuries.

California Highway Patrol Sergeant Brad Palmer testified at a pretrial hearing that on the way to the scene, he was informed that the collision involved a potential fatality and the motorcycle rider was being airlifted to a trauma center. At the scene, medical personnel informed Palmer that the victim would likely die from his injuries. Palmer testified that he observed tire friction marks on the roadway providing evidence that Tran had drifted into the other lane of traffic on a two-lane roadway as he attempted a very sharp right turn. The friction marks from the vehicle indicated Tran was traveling at a high rate of speed before the collision.

At the site of the accident, Officer Gilbert Ontiveros explained that, based on the tire friction marks, scuffing on the exterior sidewalls of the vehicle’s left side tires, and witness statements, Tran’s vehicle was traveling at a high rate of speed in a reckless manner. A witness to the accident told Palmer that he estimated Tran’s speed before the curve was between 35 and 40 miles per hour.

Ontiveros also told Palmer that Tran had removed a dashboard camera from his vehicle. Palmer testified that in his experience with dashboard cameras, they are breakable and easily hidden. When Palmer contacted Tran at the scene, Tran had a backpack on the ground near him. Palmer initially asked Tran if he was okay. Then Palmer asked him if he had a dashboard camera. Tran admitted he had one. Palmer then asked Tran if he had removed the camera from his vehicle, and Tran stated that he had. Palmer next asked Tran where the camera was. In Palmer’s testimony, he explained that he asked this question because he was concerned about “exigent circumstances.” Palmer believed he “needed to get that dashboard camera because it had evidence, and [he] was concerned with the little SD cards that could be in it. It could be destroyed by putting your fingers in your pockets. It could be chucked. It could be stepped on.”

Tran told Palmer that he had the camera, and it was in his backpack. Palmer asked Tran to get the camera for him but Tran was quite hesitant to do so, though he eventually agreed. Palmer stated that it appeared that he “didn’t really want to” get the camera. Tran ultimately retrieved the dashboard camera from his backpack and then Palmer said that he was going to seize the camera because it “ha[d] evidence of [Tran’s] driving.” Palmer explained that Tran asked about the sergeant’s authority to take the camera. Seeing Tran’s hesitation, Palmer warned him that if he did not turn over the camera he would be “obstructing this investigation.” Tran eventually gave the camera to Palmer.

Palmer testified that “my thinking was I needed to get it right then” because the SD card could be destroyed or removed and due to the seriousness of the investigated offense, and because Tran appeared to be trying to conceal evidence on the camera.

Palmer gave the dashboard camera to Ontiveros and instructed him to obtain a search warrant for the contents of the dashboard camera before viewing the content on it. Three days later, a search warrant was obtained to view the contents of the camera.

Tran was not arrested on the day of the collision. A warrant for Tran’s arrest was issued in March 2017, over four months after the accident. Prior to trial, Tran moved to suppress the evidence obtained from the warrantless search of his backpack and seizure of his dashboard camera. After hearing Palmer’s testimony and argument from the parties at the hearing on the motion to suppress, the trial court denied the motion. A jury convicted Robert Kien Tran of reckless driving, in violation of Vehicle Code section 23103, subdivision (a). Tran was sentenced to three years’ probation with 30 days in custody. Tran appealed, arguing the trial court erroneously denied his pretrial motion to suppress.

Held: The California Fourth District Court of Appeal observed that the Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures, and that “no Warrants shall issue, but upon probable cause … .” The Court explained that “[a] seizure is ‘far less intrusive than a search.’ (U.S. v. Payton (9th Cir. 2009) 573 F.3d 859, 863[].) Whereas a search implicates a person’s right to keep the contents of his or her belongings private, a seizure only affects their right to possess the particular item in question. (Segura v. United States (1984) 468 U.S. 796, 806 [].) Consequently, the police generally have greater leeway in terms of conducting a warrantless seizure than they do in carrying out a warrantless search. The Fourth District noted that the United States Supreme Court has ‘frequently approved warrantless seizures of property … for the time necessary to secure a warrant, where a warrantless search was either held to be or likely would have been impermissible.’ (Ibid.)”

Tran argued on appeal that exigent circumstances did not exist; thus, law enforcement was not excused from first obtaining a warrant. The Fourth District noted that in United States v. Place (1983) 462 U.S. 696, the United States Supreme Court held that exigent circumstances can justify the seizure of a container without a warrant, but the container, once seized, cannot be searched without “issuance of a warrant to examine its contents.” (Place, 462 U.S. at p. 701.) The Court further explained that exigent circumstances include “the need to prevent the destruction of evidence.” (Kentucky v. King (2011) 563 U.S. 452, 455.)

Here, the Court deemed that Tran’s dashboard camera was a type of container as it contained digital images. And the camera was seized without a warrant, but searched pursuant to one. The Court observed that these facts paralleled the facts in Place.[2] The Court explained that the primary disagreement between Tran and the People was whether probable cause existed and whether exigent circumstances justified Palmer’s seizure of the camera.

The Court determined that Palmer’s testimony established that he had probable cause to believe that Tran had been driving recklessly. He testified that he was told that a vehicular collision involved a potential fatality with a motorcycle rider being airlifted to a hospital; he observed tire friction marks on the roadway indicating that Tran’s car had drifted into the other lane of traffic on two-line roadway while attempting a sharp right turn; and the friction marks indicated that Tran was traveling at a high rate of speed. Palmer also testified that Ontiveros briefed him at the site of the accident, informing him that, based on the tire friction marks, scuffing on the exterior sidewalls of the vehicle’s left side tires, and witness statements, Tran’s vehicle was traveling at a high rate of speed in a reckless manner. The Court found this evidence was sufficient to lead Palmer to believe Tran had driven recklessly.

The Court of Appeal then considered whether exigent circumstances justified Palmer’s warrantless seizure of the dashboard camera. The Court explained that as part of this analysis, the Court had to consider whether Palmer had probable cause to believe the camera contained evidence of a crime. The Court noted that Ontiveros told Palmer Tran had removed the dashboard camera from his vehicle; that Palmer logically focused on the device as it had the capability to record the events leading to the collision; that Palmer testified that he had encountered dashboard cameras frequently on the job and was familiar with them and their use by performance drivers in “souped up” vehicles; that Tran’s vehicle had “a lot of aftermarket parts on it;” and that Palmer testified that based on his experience and his observation of Tran’s vehicle, he believed that the dashboard camera contained footage of Tran driving. The Court noted that Tran’s hesitancy to provide the camera after Palmer requested it further supported Palmer’s belief that the camera contained evidence of a crime.

The Court also concluded substantial evidence supported the trial court’s finding that Palmer had reason to believe Tran could destroy the evidence on the camera. Palmer testified to his knowledge that such cameras usually have removable internal recording devices, that high performance vehicle drivers use such cameras to record their driving, and that the cameras are breakable and easily hidden. Palmer was investigating a potentially fatal collision and there was strong evidence that Tran drove recklessly, and testified that his primary focus was on securing the camera to ensure that the evidence was not destroyed or altered, a concern that was heightened by Tran removing the camera from his car and putting it in his backpack.

The Fourth District found that substantial evidence supported that trial court’s finding that Palmer had reason to believe there was evidence on the dashboard camera and Tran might seek to destroy the camera or the camera’s SD card. The Court therefore concluded the seizure of the dashboard camera did not violate the Fourth Amendment and the trial court did not err in denying Tran’s motion to suppress. The Court accordingly affirmed.

1. Officers’ search of a home lawful based on their reasonable, though mistaken, belief that parolee subject to search condition lived there

United States v. Ped, 943 F.3d 427 (9th Cir. 2019)

Facts: Defendant Anthony Lee Ped and Nick Wilson are brothers. In April 2016, Wilson was released from the custody of the California Department of Corrections and placed on post-release community supervision. The terms of that supervision permitted officers to search Wilson’s “residence and any other property under [his] control . . . without a warrant day or night.” When Wilson was released from prison, he informed his probation officer that he lived at his family’s home on Eliot Street in Santa Paula, California. Ped also lived there.

Soon thereafter, officers conducted a warrantless search of the house. Wilson was not present at that time. Officers spoke with Wilson’s mother and confirmed that Wilson lived there. Later, officers went to the Eliot Street address in response to a family disturbance call, and were met during that visit by Ped and his mother. Again, officers confirmed that Wilson lived there.

In June 2016, Wilson’s probation officer provided the Santa Paula Police Department with a list of names and addresses of persons living in Santa Paula who were subject to supervision. The list included Wilson at the Eliot Street address. The next day, however, Wilson was arrested on unrelated charges and held at the Ventura County Jail, where he remained for three months. Upon his release, Wilson told the probation officer that he would be living in Newbury Park, California. The probation officer did not independently verify that new address, nor did he update the list he previously had given the Santa Paula Police Department.

About ten days after Wilson’s release, Santa Paula Police Department officers—including one of the officers involved in the response to the earlier family disturbance call—randomly selected Wilson for a routine search of individuals on supervised release. Because the officers were unaware that Wilson had reported that he moved to Newbury Park, the officers went to the Eliot Street address. As they approached the house, they heard a commotion inside. The officers pushed open the door, and saw Ped holding a methamphetamine pipe. Both Ped and his mother said that Wilson no longer lived there. The officers did not believe them and searched the residence anyway. The search produced seven firearms. Ped admitted under questioning that the weapons were his and that he had previously been convicted of a felony.

A grand jury indicted Ped on three counts, including being a felon in possession of a firearm, in violation of 18 U.S.C. section 922(g)(1). After the District Court denied a motion to suppress the evidence found in his house, Ped entered into a conditional plea agreement in which he pled guilty to the Section 922(g)(1) count but retained the right to appeal the denial of the suppression motion. Ped appealed, challenging the denial of his motion to suppress.

Held: The Ninth Circuit Court of Appeals explained that it is a “basic principle of Fourth Amendment law . . . that searches and seizures inside a home without a warrant are presumptively unreasonable,” Kentucky v. King, 563 U.S. 452, 459 (2011) (citation omitted). Parolees, however, “have severely diminished expectations of privacy by virtue of their status,” Samson v. California, 547 U.S. 843, 852 (2006). Parolees may be subject to warrantless searches of their homes without a warrant or suspicion of wrongdoing (Cuevas v. De Roco, 531 F.3d 726, 732 (9th Cir. 2008) (per curiam)), even if other people also live there. United States v. Bolivar, 670 F.3d 1091, 1092-93, 1096 (9th Cir. 2012); see also Samson, 547 U.S. at 856-57.

However, the Court observed, the police must “be reasonably sure that they are at the right house”; a parolee’s diminished expectation of privacy cannot “justif[y] the entry into and search of a third person’s house to search for the parolee.” Motley v. Parks, 432 F.3d 1072, 1079 (9th Cir. 2005) (en banc), overruled in part on other grounds by United States v. King, 687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam). To protect the interests of third parties, “officers must have probable cause to believe that the parolee is a resident of the house to be searched.” Id. at 1080. “[P]robable cause as to residence exists if an officer of ‘reasonable caution’ would believe, ‘based on the totality of [the] circumstances,’ that the parolee lives at a particular residence.” Grandberry, 730 F.3d at 975 (quoting United States v. Diaz, 491 F.3d 1074, 1077-78 (9th Cir. 2007)).

Here, the Court of Appeals declared that the list the probation officer provided to the police officers – which stated that Wilson had reported living at the Eliot Street address – was the most important circumstance establishing probable cause. The Court noted that it had held in Motley that officers acted reasonably when they relied on a similar list. 432 F.3d at 1080-82.

Ped pointed out that the list in Motley was one month old whereas the list here was three months old. The Court acknowledged that at a certain point, a reported address would become so old that it would no longer be reasonable for officers to rely on it. However, nothing about Wilson’s reported address indicated that it was likely to be temporary, and although a person living in a house with family members might move away in less than three months, it would be reasonable to expect that he would still live there.^[3]

The Ninth Circuit determined that the particular facts here included substantial information corroborating the listed address. Specifically, the Court found that the officers reasonably relied on their earlier visits to the Eliot Street address, in which they had confirmed that Wilson lived there from Wilson’s mother and Ped. Those facts supported the reasonableness of their belief that they were at the right residence for Wilson.

The Court noted the assessment of probable cause takes into account “the totality of the circumstances known to the officers at the time of the search.” Lacey v. Maricopa County, 693 F.3d 896, 918 (9th Cir. 2012) (en banc) (quoting United States v. Patayan Soriano, 361 F.3d 494, 505 (9th Cir. 2004); italics added). Although Wilson had told his probation officer that his new residence was in Newbury Park ten days before the officers conducted the search at his old residence in Santa Paula, the officers did not know that. The Court thus found that the probable cause assessment was not affected by this information.

The Court reflected that the officers could have made additional inquiries to verify that Wilson still lived at Ped’s house in Santa Paula. However, because the officers had a reasonable basis for believing that Wilson lived there, they were not required to take further steps to confirm his last reported address.

The Ninth Circuit Court of Appeals accordingly affirmed Ped’s conviction but remanded for modification of the conditions.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 37, available at www.jones-mayer.com.

1. The Fourth Amendment does not permit searching a vehicle to locate a driver’s identification following a traffic stop absent warrant or other exception to warrant requirement

People v. Lopez, 2019 Cal. LEXIS 8892 (Nov. 25, 2019)

Facts: On the morning of July 4, 2014, City of Woodland Police Officer Jeff Moe responded to an anonymous tip concerning erratic driving. The tip described the car, a dark-colored Toyota, and the area in which it was driving. Officer Moe was not able to locate the vehicle, even after he drove to the address where dispatch had informed him the car was registered. Around 1:30 p.m., Officer Moe received a second anonymous report regarding the same car. The tipster identified the car’s location and asserted the driver, whom the tipster identified as “Marlena,” “had been drinking all day.” Officer Moe again did not locate the car, but went back to the registered address, parked, and waited. After a few minutes, defendant Maria Elena Lopez drove up and parked in front of the house.

Moe did not observe any traffic violations or erratic driving. But believing the driver to be “Marlena,” Officer Moe approached the car. Moe testified at the suppression hearing that Lopez saw him, looked nervous, exited the car, and started to walk away from him. Moe did not smell alcohol or note any other signs of intoxication, but “wanted to know what her driving status was based on the allegations earlier, plus [he] wanted to identify who she was.” Moe asked Lopez if she had a driver’s license. Lopez said that she did not. Without asking Lopez for her name or other identifying information, Moe detained her for unlicensed driving by placing her in a control hold. When Lopez tried to pull away, Moe handcuffed her.

Officer Moe then asked Lopez “if she had . . . any identification possibly within the vehicle.” When Lopez responded “there might be,” a second officer on the scene opened the passenger door, retrieved a small purse from the passenger seat, and handed it to Moe. Moe then searched the purse and found a baggie containing methamphetamine in a side pocket.

Lopez was charged with misdemeanor violations of possessing methamphetamine (Health & Safety code section 11377(a)) and driving when her license to drive had been suspended or revoked (Vehicle Code section 14601.2(a)). She filed a motion to suppress evidence (Penal Code section 1538.5(a)(1)), arguing she had been unlawfully detained and her purse unlawfully searched.

The trial court granted the suppression motion. The court concluded that once Lopez told Officer Moe she did not have a license, the officer had probable cause to detain and arrest her for driving without a valid license.^[4] However, the trial court further concluded that the subsequent search of Lopez’s vehicle was invalid because neither of the justifications for conducting a vehicle search incident to arrest under the United States Supreme Court’s decision in Arizona v. Gant (2009) 556 U.S. 332 was present. Gant held that a vehicle search incident to arrest is justified only if it is reasonable to believe the suspect can gain access to weapons inside the vehicle or that evidence of the offense of arrest might be found inside the vehicle. (Id. at p. 335.)

Here, Lopez was handcuffed at the rear of her car when the search took place and could not reach any weapons inside the car. Nor was there any likelihood a search of the car would produce evidence of Lopez’s driving without a license in her possession.^[5] With the evidence suppressed, the trial court dismissed the case.

The California Third District Court of Appeal reversed the suppression ruling. The Court of Appeal explained that Gant was not applicable because Lopez had not been formally arrested, only detained, at the time of the search. The authority for the search was thus not the search incident to arrest exception at issue in Gant, but the traffic-stop identification-search exception recognized in In re Arturo D. (2002) 27 Cal.4th 60, which allowed police to conduct warrantless vehicle searches for personal identification documents at traffic stops when the driver failed to provide a license or other personal identification upon request. The Court of Appeal found that once Lopez told Officer Moe that she did not have a driver’s license, Officer Moe had cause to believe Lopez had driven without a license in violation of the Vehicle Code. Under Arturo D., the police were then permitted to search Lopez’s vehicle for other forms of identification in order to ensure that any citation and notice to appear for the Vehicle Code violation reflected Lopez’s true identity. If Arturo D. “is still good law,” the Court of Appeal concluded, “the search in this case was reasonable under the Fourth Amendment.”

Held: The Supreme Court of California granted review “to consider the application and continuing validity of the Arturo D. rule in light of subsequent legal developments.” The Court explained that “warrantless searches ‘are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ (Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted; accord, People v. Redd (2010) 48 Cal.4th 691, 719 [“A warrantless search is presumed to be unreasonable”].)” Whether a particular kind of search is exempt from the warrant requirement ordinarily depends on whether, under the relevant circumstances, law enforcement’s need to search outweighs the invasion of individual privacy. (Riley v. California (2014) 573 U.S. 373, 385; Delaware v. Prouse (1979) 440 U.S. 648, 654; Camara v. Municipal Court (1967) 387 U.S. 523, 536-537.)

The Court explained that Arturo D. held that when a driver has been detained for a traffic infraction and fails to produce vehicle registration or personal identification documentation upon request, the Fourth Amendment “permits limited warrantless searches of areas within a vehicle where such documentation reasonably may be expected to be found.” (Arturo D., supra, 27 Cal.4th at p. 65.) However, Arturo D. did not identify any prior cases, either from California or elsewhere, that held that the need to locate a driver’s license or other form of personal identification could justify a warrantless search.

After determining that the search of Lopez’s car was consistent with the guidance given in Arturo D., the Supreme Court declared the central issue was whether to continue to abide by its holding of Arturo D., “notwithstanding subsequent legal developments casting doubt on the validity of a categorical rule authorizing warrantless vehicle searches whenever a driver stopped for a traffic infraction fails to produce a license or other satisfactory identification documents upon request.”

The California Supreme Court next turned to the high court’s decision in Gant. Lopez contended that the reasoning of Gant undermined the validity of the Arturo D. identification-search exception. The Court proceeded to consider the Supreme Court precedent leading to Gant, including the Chimel,^[6] Belton^[7] and Thornton^[8] decisions.

In 2009, the high court considered Gant. Gant held that a Belton search for weapons or destructible evidence is permitted only when an arrestee is actually capable of reaching the area to be searched. (Gant, supra, 556 U.S. at p. 343 & fn. 4.) Gant also allowed searches for evidence relevant to the crime of arrest (Id.), although the Court observed that, as in most cases involving arrests for traffic violations, there was no chance of finding relevant evidence inside the car.

Gant rejected the state’s argument that a broader, more categorical rule authorizing vehicle searches incident to arrest “correctly balances law enforcement interests, including the interest in a bright-line rule, with an arrestee’s limited privacy interest in his vehicle.” (Gant, supra, 556 U.S. at p.344.) The California Supreme Court here next considered Arturo D. in light of the Gant decision, which came more than six years later, and other subsequent legal developments.

The Court here explained that “[w]hen emergent [United States] Supreme Court case law calls into question a prior opinion of another court, that court should pause to consider its likely significance before giving effect to an earlier decision.”^[9] The California Supreme Court elaborated: “[E]ven when the high court’s decision did not directly address the continuing validity of the rule in question[,] the high court’s guidance may nonetheless erode the analytical foundations of the old rule or make clear that the rule is substantially out of step with the broader body of relevant federal law.”^[10] The Court determined that the reasoning of Gant presented “additional, highly relevant guidance not available at the time of Arturo D. Gant speaks clearly to the stakes on each side, and its reasoning calls for a reappraisal of the proper balance of interests to ensure consistency with the larger body of Fourth Amendment law.”

Gant had warned against “undervalu[ing] the privacy interests at stake” in the context of vehicle searches. (Gant, supra, 556 U.S. at pp. 344-345.) The Court here found that Arturo D. contained no discussion of the magnitude of the intrusion associated with a search for a driver’s license or other proof of identity, and merely cited high court authority for the proposition that drivers “have a reduced expectation of privacy while driving a vehicle on public thoroughfares.” Gant had clarified that because a motorist’s privacy interest in his vehicle was important and deserving of constitutional protection, a rule that allowed police officers to search vehicles (and the purses and other containers therein) “whenever an individual [wa]s caught committing a traffic offense” was not only a “serious and recurring threat to . . . privacy,” but a threat that “implicate[d] the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

Arturo D. attempt to draw limits in its granted identification-search power did not prevent the case from being used as authority to uphold searches into purses, bags, center consoles, and glove compartments, under both driver and passenger seats, into backpacks in the bed of a truck, and up the sleeves of a jacket lying in the well behind the front seats of an SUV. The Court explained that as much as Arturo D. attempted to limit the authority it granted to avoid full-scale searches, the inevitable consequence of a categorical rule authorizing officers to look for identification in places where they might reasonably believe the identification is located, or where it might have been hidden, was that officers would look throughout the area into which the driver might reach, much as they would if they were conducting a vehicle search incident to arrest. The Court found that Arturo D. had seriously undervalued substantial privacy interests at stake.

Turning to the law enforcement interests part in weighing the balance of interests, the Court explained that Gant guided that courts must pay close attention to the presence or absence of the circumstances that justify breaching a person’s privacy by searching a vehicle and the personal effects contained therein. Arturo D.’s justification for its identification-search exception was the need to ensure that a law enforcement officer has the information necessary to issue a citation and notice to appear for a traffic infraction. Arturo D. considered a limited warrantless search to be more reasonable than the alternative of subjecting the driver to full custodial arrest, which would impose substantially greater burdens on drivers and law enforcement alike. Arturo D. considered no additional choices however.

Here, the Court explained that “experience and common sense suggest a range of options that are both less intrusive than a warrantless search and less burdensome than a full custodial arrest…To the extent there are adequate alternative avenues for obtaining the information needed by law enforcement, the interest in searching a vehicle without a warrant necessarily carries less weight.” For example, the officer can ask questions of the driver beyond querying whether the driver has personal identification, such as the driver’s full name, address and date of birth. This information can be checked against Department of Motor Vehicles records. The detainee’s physical characteristics also can be checked against such records. An officer can seek the driver’s consent to search the vehicle for identification, since consent to a search is a well-established exception to the warrant requirement for a search. An officer could also cite and release the detainee, or release the suspect with a warning against committing future violations. Finally, the officer could arrest the detainee and book the detainee into jail for the traffic violation. The Court acknowledged that the Fourth Amendment does not require law enforcement to use the least intrusive means of achieving its purposes. However, the Fourth Amendment does demand that law enforcement act reasonably. The availability of so many alternative means for achieving law enforcement goals tended to undermine the notion that the search intrusion was reasonable.

The Court observed that Moe could have employed any one of the several approaches discussed above to ascertain Lopez’s identity once she exited the car. However, Officer Moe never even ask Lopez her name. Instead, after detaining Lopez for a suspected traffic infraction, the officer proceeded directly to searching the purse on the passenger’s seat. Under Gant, Officer Moe could not have searched Lopez’s vehicle if he had arrested her for unlicensed driving instead of simply detaining her. The Court concluded that searching Lopez’s vehicle for her personal identification before she was arrested was no less unreasonable.

Moreover, the California Supreme Court explained that neither the United States Supreme Court nor any other state has ever embraced a similar exception for traffic-stop identification searches as did Arturo D. California remains a “minority of one” when it comes to approving a warrantless vehicle search solely for personal identification. To reaffirm the exception now, the California Supreme Court explained, would leave California out of step not only with United States Supreme Court precedent, but also with every other jurisdiction in the nation.

The Court held that the Fourth Amendment does not contain an exception to the warrant requirement for searches to locate a driver’s identification following a traffic stop. To the extent it created such an exception, the California Supreme Court here overruled In re Arturo D. and concluded that it should no longer be followed. Accordingly, the Court reversed the judgment of the Court of Appeal and remanded for further proceedings.

Three justices dissented, arguing that Gant was “simply not on point” such that it required reconsideration of Arturo D.’s “narrow exception.” The dissent contended Arturo D. did not “giv[e] police officers unbridled discretion to rummage at will among a person’s private effects.” (Gant, supra, 556 U.S. at p. 345.), and thus, did not match the comprehensive vehicle search disapproved in Gant.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 38, available at www.jones-mayer.com.

PUBLIC RECORDS

Attorney fees are available in reverse California Public Records Act actions when public interest is involved as an exception to the rule of bearing one’s own attorney fees under Code of Civil Procedure section 1021.5.

City of L.A. v. Metro. Water Dist. of S. Cal., 2019 Cal. App. LEXIS 1149 (2nd Dist. Nov. 19, 2019)

Facts: The Metropolitan Water District of Southern California (“MWD”) is a cooperative water wholesaler with 26 members, including the City of Los Angeles Department of Water and Power (“DWP”). In 2014, MWD began a rebate program in which MWD provided money or rebates to customers of its member agencies who replaced their grass with drought tolerant landscaping. There were about 40,000 participants in the turf program, and about 7,800 of them were DWP customers.

In May 2015, a reporter for the San Diego Union Tribune (“Union”) reporter made a request pursuant to the California Public Records Act (Government Code section 6250 et seq.; “CPRA”) to MWD for customer information about participants in the rebate program, including their names, addresses, and rebate amounts.

In July 2015, DWP filed a petition for writ of mandate against MWD to prevent MWD from disclosing records of DWP customers to the Union (actions to prevent disclosure of public records are described here as a “reverse-CPRA” actions). Union intervened and filed a CPRA cross-petition against MWD. Three other water districts (“Intervener Utilities”) opposed disclosure and intervened in the mandamus proceedings.

The trial court denied DWP’s petition for writ of mandate and granted Union’s CPRA cross-petition, ordering disclosure of the records. The trial court awarded Union $25,319 in attorney fees under CPRA against MWD for Union’s work on the CPRA cross-petition up until the point where MWD agreed it would produce complete customer names and addresses. For its work opposing the mandamus petition, Union received $136,645.82 in attorney fees under Code of Civil Procedure section 1021.5 “against DWP and Intervener Utilities.

Appeals stemmed from the attorney fee rulings. DWP and Intervener Utilities appealed, arguing that Union was not entitled to attorney fees under Code of Civil Procedure section 1021.5, because such attorney fees were not authorized in actions involving CPRA requests and because Union had not satisfied the requirements of Section 1021.5.

DWP separately contended on appeal that the trial court abused its discretion in awarding Union attorney fees on its unsuccessful claim that DWP and MWD colluded to avoid CPRA and to bring the mandamus petition. Compensation is ordinarily warranted even for unsuccessful early claims in a series of attacks on an opponent’s case, and so the trial court did not abuse its discretion in finding attorney fees warranted for Union’s initial “collusion” claims, particularly since those claims touched on the emerging area of “reverse-CPRA” actions.

Union also appealed, arguing the trial court abused its discretion in denying it attorney fees for its work preparing separate reply briefs to three separate oppositions to fees filed by MWD, DWP and Intervener Utilities.

Held: The California Second District Court of Appeal explained that the CPRA provides a streamlined and expedited process for public access to government records. CPRA provides that “every person has a right to inspect any public record” (Section 6253(a)), “[e]xcept with respect to public records exempt from disclosure by express provisions of law.” (Section 6253(b).) If an agency withholds records, the agency “shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Section 6255(a).)

CPRA provides that a trial court “shall award court costs and reasonable attorney[] fees” to a requesting party who succeeds in an action to compel disclosure. (Section 6259(d).) In contrast, agencies who prevail in the action and prevent disclosure may only receive attorney fees if the court finds “the requestor’s case is clearly frivolous.” (Ibid.)

The Court explained that Code of Civil Procedure section 1021.5 (“Section 1021.5”) codifies the “private attorney general” exception to the general rule that parties bear their own attorney fees. (See Code of Civil Procedure section 1021.) Section 1021.5 authorizes a trial court to award attorney fees when “(1) the action resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit was conferred on the general public, and (3) the necessity and financial burden of private enforcement make the award appropriate.” (Pasadena Police Officers Assn. v. City of Pasadena (2018) 22 Cal.App.5th 147, 159 (“PPOA”).)

DWP and Intervener Utilities argued against the fees awarded against them under Section 1021.5, with DWP contending that attorney fees are never available in a reverse-CPRA action. DWP relied on Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250) which held that that attorney fees are never available in reverse-CPRA cases. However, the Second District distinguished Marken because the records requestor was a single individual whose petition was based on that individual’s personal circumstances. Here, the requesting party, Union, did intervene and file a CPRA cross-action; the writ petition was brought by a public agency, DWP, to protect, at a minimum, the records of thousands of customers under a general privacy theory. Further, no attorney fees were sought in Marken’s appeal.

More importantly, the Court observed that in April 2018 during the pendency of the appeal here, “Division 1 of this court issued its opinion in PPOA, explaining that attorney fees are available to an intervening requesting party in reverse-CPRA cases.” The Second District found PPOA to be “quite similar factually” to PPOA, contrary to DWP’s position, explaining that (1) both PPOA and the appeal here involved records related to a matter of public interest; and (2) that the PPOA reverse-CPRA action had been brought by a union representing the interests of its large number of members, and this reverse-CPRA action to prevent disclosure was brought by a public agency, DWP, representing a large number of its customers.

DWP contended that even if Section 1021.5 attorney fees were permissible in reverse-CPRA actions, Union did not meet Section 1021.5’s requirements. The Court disagreed, finding that the trial court did not abuse its discretion in finding Union met the section’s requirements for attorney fees. The Court explained that Union was the prevailing party and its action resulted in the enforcement of an important right affecting the public interest in monitoring the spending of hundreds of millions of dollars in public funds, conferring a significant benefit on the general public by disclosure. The Court also found DWP and Intervener Utilities were not exempt from attorney fees on the ground they were the equivalent of an individual who seeks a determination of “only his or her [own] private rights [and] has done nothing to adversely affect the public interest.” (Adoption of Joshua S. (2008) 42 Cal.4th 945, 958.). The Court observed that DWP and Intervener Utilities sought far more than a simple determination of the privacy rights of a few customers.

The Court also held that DWP was not entitled to a reduction in the fee award for work Union performed on its unsuccessful claim that DWP and MWD colluded to avoid CPRA and to bring the mandamus petition. The Court explained that compensation was ordinarily warranted even for unsuccessful early claims in a series of attacks on an opponent’s case. The Court therefore concluded that the trial court did not abuse its discretion in finding attorney fees warranted for Union’s collusion claims.

Lastly, the Court agreed with Union that the trial court abused its discretion in denying fees for Union’s work preparing the separate reply briefs to three separate oppositions to fees filed by MWD, DWP and Intervener Utilities. The Second District modified the trial court’s order to add $12,350.33 in fees against only against DWP and Intervener Utilities jointly and severally, but otherwise affirmed.

IMMIGRATION

9th Circuit affirms order granting preliminary injunction against DOJ’s use of notice and access conditions regarding Byrne Jag Grant funding.

City of L.A. v. Barr, 941 F.3d 931 (9th Cir. 2019)

Facts: Congress established the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”), 34 U.S.C. sections 10151-10158 in 2006 as part of the Violence Against Women and Department of Justice Reauthorization Act of 2005.^[11] Byrne JAG authorized the Attorney General to make grants to state and local governments for “additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of” eight programs. 34 U.S.C. section 10152(a)(1). Congress also established that the Attorney General could make Byrne JAG awards for any purpose that would have been authorized under Byrne JAG’s two predecessor programs, the former Edward Byrne Memorial State and Local Law Enforcement Assistance Programs (“LEAP”) and the Local Government Law Enforcement Block Grants Program (“LGLEBGP”), both of which provided funding to state and local governments for various law-enforcement-related purposes.

Byrne JAG is administered by the Office of Justice Programs (“OJP”), a United States Department of Justice (“DOJ”) department headed by an Assistant Attorney General for OJP that administers a variety of grant programs. The Assistant AG has responsibility for several grant programs, including Byrne JAG. The Assistant AG must provide criminal-justice-related information to the public and government entities, coordinate efforts between various government organizations, and fulfill a number of other specified responsibilities. Moreover, and significant here, the Assistant AG must “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” Id. Section 10102(a)(6) (italics added).

The Attorney General develops and issues rules to carry out the grant program, id. Section 10155, and is also responsible for receiving and reviewing applications, id. Section 10154. The Attorney General has developed a grant award document that includes a long list of requirements and conditions not explicitly set forth in the Byrne JAG statute itself. The grant award document warns recipients that the funding is “subject to such conditions or limitations as are set forth on the attached page(s).” The conditions listed in the grant award document vary from year to year and typically cover a wide variety of subject matter.

OJP imposed two new conditions for Byrne JAG funding for fiscal year 2017, both of which were included in the grant award documents. The first new condition, called the “notice condition,” required a recipient to honor requests by the Department of Homeland Security (“DHS”) for advance notice of the scheduled release date and time of any detained alien held in the recipient’s correctional facilities. The second new condition, the “access condition,” required a recipient to give federal agents access to correctional facilities to meet with detained aliens, or individuals believed to be aliens. The grant award document also stated that these conditions were “an authorized and priority purpose of” the Byrne JAG award and applied “[w]ith respect to the ‘program or activity’ that is funded” by the award, meaning all of the operations of the public entity to which the award was directed. The 2017 Byrne JAG award document stated that “[f]ailure to comply with any one or more of these award requirements” could result in loss of funding.

The City of Los Angeles (“Los Angeles”) applied for a Byrne JAG award for the 2017 fiscal year. Its application included a letter from its deputy mayor stating that Los Angeles “is withholding any commitment to, or confirmation of, its compliance with” the notice and access conditions. In September 2017, Los Angeles filed suit against DOJ, seeking an injunction against implementation of the notice and access conditions. In connection with the lawsuit, Los Angeles stated it had a policy against cooperating with federal immigration enforcement on the basis that “being perceived as a ‘cooperating’ jurisdiction in the view of the current Administration would harm public safety in Los Angeles” because it would have a negative impact on police relationships with immigrant communities.

Following a brief stay pending the Seventh Circuit’s affirmance and subsequent en banc vacatur of a nationwide injunction against the notice and access conditions,^[12] the District Court entered a preliminary injunction against DOJ’s use of the notice and access conditions in September 2018. DOJ appealed, arguing that the District Court erred in determining that Los Angeles was likely to succeed on the merits of its claim that DOJ lacked statutory authority to impose the notice and access conditions.

Held: On appeal, the DOJ argued that the notice and access conditions were within the Assistant AG’s authority under a 2006 amendment to Section 10102(a)(6). Section 10102(a)(6), as amended now, provides that the Assistant AG must “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” 34 U.S.C. section 10102(a)(6) (italics added). DOJ contended that by amending the statute, Congress gave the Assistant AG the authority to impose notice and access conditions as “special conditions” on Byrne JAG awards and to announce the Attorney General’s determination that such conditions were “priority purposes” of the awards. The Ninth Circuit Court of Appeals considered how to interpret the meaning of the terms “special conditions” and “priority purposes” in Section 10102(a)(6) as amended.

The term “special conditions” is not defined in the statute. The Court relied on the dictionary definition, defining the term “special” as “unusual” or “extraordinary,” Special, Black’s Law Dictionary (9th ed. 2009), or “assigned or provided to meet a particular need not covered under established procedures,” Special, Webster’s New Int’l Dictionary (3d ed. 2002). According to this view of the definition of “special” then, a “special condition” would be applied “to meet a particular need” for carrying out a program that is not covered by established requirements.

The Court noted that in construing specific words in a statute, “we must also look to the ‘language and design of the statute as a whole,’ K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291[] (1988), and read the specific words ‘with a view to their place in the overall statutory scheme.’ Wilderness Soc’y, 353 F.3d at 1060 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).” Here, the Court found the interpretation of “special conditions” arising from dictionary definitions consistent with the regulatory backdrop against which Congress enacted both Section 10102(a)(6)’s “including” clause and the Byrne JAG statutes. At the time, a regulation titled “[s]pecial grant or subgrant conditions for ‘high-risk’ grantees,” provided that if a grantee was “high-risk,” then “special conditions and/or restrictions shall correspond to the high risk condition and shall be included in the award.” Id. Section 66.12(a)(5). A grantee could be deemed high risk if it had a history of noncompliance with grant requirements, financial stability issues, or other factors that suggested the grantee’s propensity toward violation of a grant’s terms. Id. Section 66.12(a). Additionally, the regulation required the awarding agency to inform the grantee of the reasons for the special conditions and identify remedial actions the grantee could take to have the special conditions removed. Id. Section 66.12(c). The Court of Appeals determined that this regulatory meaning of “special conditions” presumably informed Congress’s use of the term in Section 10102(a)(6).

The Court also considered other relevant statutory provisions. The Ninth Circuit determined that Section 10109(a)(2)’s use of “special conditions,” for example, suggested that “special conditions” were understood to be individualized requirements included in a specific grant, as set forth in 28 C.F.R. section 66.12(a)(5) (2006).

Because “identical words used in different parts of the same act are intended to have the same meaning.” Dep’t of Revenue of Or. v. ACF Indus., 510 U.S. 332, 342 (1994) (internal quotation marks omitted), the Court found that it followed that Congress intended the use of “special conditions” in Section 10102(a)(6) to have the same meaning as it had in Section 10109(a)(2), namely to refer to individualized requirements. The Court concluded therefore that the inclusion of “placing special conditions on all grants” in Section 10102(a)(6) referred to the power to impose tailored, individualized requirements when necessary, such as when a grantee is “high-risk” pursuant to 28 C.F.R. Section 66.12(a)(5) (2006).

The Court of Appeals then interpreted Section 10102(a)(6)’s use of the term “priority purposes.” The Court explained that the Byrne JAG statute in Section 10152(a)(1) establishes that the “purpose” of an award is to “provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice,” within various programs proposed by applicants. The purposes specified in the predecessor grant statutes, LEAP and the LGLEBGP, mentioned quite similar items, and lacked any mention of any reference to detained aliens or immigration. The Ninth Circuit determined that none of the purposes set forth in Section 10152(a)(1) or the predecessor grant statutes corresponded to DOJ’s requirement that the recipient honor DHS’s requests for advance notice of detained aliens’ release dates or allow federal agents access to correctional facilities to meet with detained aliens.

Considering its interpretation of “special conditions” and “priority purposes,” the Court concluded that Section 10102(a)(6) did not authorize DOJ to require all recipients of Byrne JAG funding to comply with the notice and access conditions. Because the notice and access conditions were inconsistent with these terms’ interpretations, the Court held that DOJ lacked statutory authority to impose them under Section 10102(a)(6). Therefore, the Ninth Circuit rejected DOJ’s argument that Section 10102(a)(6) provided it the authority to impose the notice and access conditions.

The Ninth Circuit then considered DOJ’s argument that the propriety of the notice and access conditions are supported by provisions in the Byrne JAG statute that authorize the Attorney General to obtain certain information and require coordination with agencies. See 34 U.S.C. section 10153(a)(4), (5). According to DOJ, the notice condition is authorized by Section 10153(a)(4), which requires a recipient to report certain programmatic information, and the access condition is authorized by Section 10153(a)(5)(C), which requires a recipient to coordinate with an “affected agenc[y].”

The Court explained that Section 10153(a)(4) requires the applicant to maintain and report information that is financial and “programmatic.” Section 10152 lists types of “programs” that Byrne JAG may fund, including “[l]aw enforcement programs,” “[p]revention and education programs,” and “[d]rug treatment and enforcement programs.” 34 U.S.C. Section 10152(a)(1). Given the use of the word “program” elsewhere in the same statutory scheme, the term “programmatic” in Section 10153(a)(4) was best read to refer to a program or programs supported by Byrne JAG funding as outlined in Section 10152(a)(1). Accordingly, the Court determined that Section 10153(a)(4) merely required an applicant to maintain and report information relating to the programs funded by a Byrne JAG award. Because DHS requests for notice of the release of a detained alien did not relate to a program funded by Byrne JAG, the notice condition did not require “programmatic” information under Section 10153(a)(4).

Looking at the access condition, the Court of Appeals explained that Section 10153(a)(5)(C), which requires a grant recipient to certify that “there has been appropriate coordination with affected agencies,” did not give the Attorney General authority to impose the access condition. In context, this section required the grant recipient to certify that it has coordinated with the agencies affected by the program to be funded by the Byrne JAG award. This statutory language, the Court concluded, did not support DOJ’s interpretation that a recipient must coordinate with DHS agents who are not part of a funded program. Thus, the Court concluded that the access condition was not a proper exercise of the Attorney General’s authority under Section 10153(a)(5)(C).

Because DOJ’s arguments for statutory authority for the power to impose the notice and access conditions were invalid, the conditions were beyond the DOJ’s authority to impose. Accordingly, the Court of Appeals affirmed the District Court.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 35, available at www.jones-mayer.com.

PUBLIC EMPLOYMENT

1. Plaintiff alleged that each disability retirement check provides her with reduced benefits and that age was a substantial motivating factor for payment of reduced benefits; thus, plaintiff’s claim was timely under ‘continuous accrual doctrine.’

Carroll v. City & Cnty. of S.F., 41 Cal. App. 5th 805 (1st Dist. 2019)

Facts: Joyce Carroll was 43 years old when she began working for the City and County of San Francisco (“City” or “defendants”). She worked for the City for approximately 15 years before retiring at age 58 due to rheumatoid arthritis. In June 2000, Carroll applied for disability retirement, and the City granted her request shortly thereafter. Since then, Carroll received monthly disability retirement benefit payments from defendants. Carroll alleged that she became aware that defendants paid her retirement benefits based on her age after seeing an advertisement in July 2017, more than 17 years after her retirement. Carroll filed a complaint with the Department of Fair Employment and Housing (“DFEH”) on November 17, 2017. Carroll brought a putative class action lawsuit on behalf of herself and others similarly situated, alleging that defendants discriminated on the basis of age in violation of California Fair Employment and Housing Act (FEHA) (Government Code section 12900 et seq.) by providing reduced disability retirement benefits to older employees who took disability retirement after working for the City for less than 22.22 years. Carroll alleged that the formula the defendants used to calculate the benefit for employees who retired due to disability provided employees who were hired over the age of 40 with reduced retirement benefits. Therefore, Carroll alleged, defendants violated FEHA by intentionally discriminating against these employees on the basis of age and by using a standard policy that had a disparate impact on older employees.

Defendants demurred, arguing that the statute of limitations barred her claims because she failed to timely file an administrative charge with DFEH. The court sustained the demurrer with leave to amend on the ground that Carroll did not file a complaint with DFEH within one year of the date the alleged unlawful employment practice occurred, and entered a stipulated dismissal with prejudice of Carroll’s complaint. Carroll appealed.

Held: The California First District Court of Appeal first explained that FEHA (Government Code sections 12920-12926) declares that it is the “public policy” of California to “protect and safeguard” the rights of employees against discrimination. The statute declares that the purpose of FEHA is to provide effective remedies that would eliminate discriminatory employment practices. Under Section 12940(a), it is unlawful “[f]or an employer, because of the … age … of any person, … to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” Carroll argued on appeal that defendants’ payment of disability retirement benefits was discriminatory on the basis of age.

The First District noted that defendants had demurred on the basis that the complaint was barred by the one-year statute of limitations for filing an administrative complaint with DFEH, a prerequisite to a civil action for damages under FEHA (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63). FEHA’s Section 12960(d) provides that the statute of limitation runs “from the date upon which the alleged unlawful practice or refusal to cooperate occurred.” The Court then considered whether Carroll’s disparate treatment and disparate impact claims were timely under FEHA.

The parties disagreed as to what triggered the running of FEHA’s limitations period. Defendants argued that the limitations period began running in 2000 when they granted Carroll’s request for disability retirement. Carroll contended that her disparate treatment claim was timely under what Carroll termed the “continuous accrual doctrine,” which meant that each discriminatory disability retirement check she received constituted a new FEHA violation.

The First District observed that in Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, the California Supreme Court held that a plaintiff’s FEHA claim accrued on the date of his discharge, not when he was informed of his discharge. Following Romano, McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947 held that plaintiffs’ FEHA claims accrued upon their termination rather than upon the earlier implementation of the allegedly discriminatory compensation plan. Thus, the First District explained, Romano and McCaskey recognized that an employer’s discriminatory decision to take an unlawful employment act is not actionable only when made but instead when statutorily prohibited acts or practices occur pursuant to that decision.

Here, the Court concluded that the allegedly unlawful employment practice of discrimination “in compensation or in terms, conditions, or privileges of employment” (Section 12940 (a)) logically occurred when the defendants paid the purportedly discriminatory retirement benefits. The Court explained that Carroll alleged that each disability retirement check provided her reduced benefits and that age was a substantial motivating factor for the payment of these reduced benefits. As such, she described repeated discriminatory acts for which she was permitted to sue over disability retirement payments falling within one year of her filing of a DFEH complaint. The Court added that its interpretation was consistent with the language of FEHA and its command to liberally interpret its provisions. (Section 12993(a); Romano, supra, 14 Cal.4th at pp. 493–494.) The Court found further support in federal law[13] and other state courts for its view.

Carroll also claimed that defendants used an employment policy to pay retirement disability benefits each month and that use of this policy caused a disparate impact on employees who worked fewer than 22.22 years for the City and began their employment when they were over 40, in that such employees received lower monthly benefits than similarly situated employees who began employment before age 40. The Court explained that under the relevant provision of Title VII, “a plaintiff establishes a prima facie disparate-impact claim by showing that the employer ‘uses a particular employment practice that causes a disparate impact’ on one of the prohibited bases.” (Lewis v. Chicago (2010) 560 U.S. 205, 212.)

The First District noted that in Lewis, the United States Supreme Court held that disparate impact claims under Title VII accrue when a discriminatory policy is “‘used’” or applied to cause a disparate impact within the limitations period. (Lewis, at pp. 214–215.) According to Lewis then, even if a defendant’s decision to adopt the practice would “g[i]ve rise to a freestanding disparate-impact claim,” a new actionable violation of Title VII occurs when the defendant “implement[s] that decision down the road”; or, in the words of the statute, when the defendant “uses a practice that causes disparate impact.” (Id. at pp. 214, 217.) Because Carroll alleged that defendants’ monthly application of an employment policy had a disparate impact, the Court concluded that under Lewis, Carroll could sue for the payments that occurred within the year prior to the November 17, 2017 filing of her DFEH complaint.

The Court also held that discretionary act immunity under Government Code section 818.2 did not apply because the suit challenged the enforcement of a local law, not its adoption.

Accordingly, the First District Court of Appeal reversed.

1. A joint-employer relationship exists when the employers exert significant control over the same employees, and where the employers have control over what is done and how it shall be done.

Cnty. of Ventura v. Pub. Emp’t Relations Bd., 2019 Cal. App. LEXIS 1162 (2nd Dist. Nov. 21, 2019)

Facts: The County of Ventura (the “County”) owns and operates Ventura County Medical Center (“VCMC”). VCMC provides a network of clinics, including 17 primary care clinics (“Clinics”) that provide outpatient services to the underserved patient population and advertise these services as affiliated with VCMC. The Clinics are owned by private corporations but under contract with VCMC to provide medical services. Each private corporation has a nearly identical professional services and operations agreement (“Operations Agreement”) with VCMC to provide medical services. Each corporation is owned by a physician, who serves as the Clinic’s medical director, and whose duties and responsibilities are established through the Operations Agreement. The Operations Agreements state that VCMC is the “licensed operator” of each Clinic. Each Clinic identifies itself as a “clinic of [VCMC].” The Operations Agreements state that Clinic patients are VCMC patients and patient records are VCMC property. The County provides and maintains the facilities, equipment, and furnishings for the Clinics to operate.

The County trains Clinic employees on VCMC’s policies and procedures, audits and reviews the work of Clinic employees to ensure compliance with County standards, and requires Clinic employees to perform many clerical and administrative tasks.

Service Employees International Union, Local 721 (“SEIU”) sought to represent nonphysician employees of satellite Clinics. The County refused to process SEIU’s petition to represent Clinic employees on the ground that private corporations and not the County were the sole employers. SEIU filed an unfair practice charge with the Public Employment Relations Board (“PERB”), alleging the County’s refusal to process its petition violated the Meyers-Milias-Brown Act (Government Code section 3500 et seq.; “MMBA”), which governs employer-employee relations between public agencies and public employees. An administrative law judge (“ALJ”) found in favor of the County and dismissed the unfair practice charge. PERB reversed the ALJ’s decision and found the County is a single employer or, in the alternative, a joint employer of Clinic employees.

The County filed a petition for a writ of extraordinary relief from PERB’s decision.[14] It argued PERB lacked jurisdiction because Clinic employees were private employees, and not County employees.

Held: The California Second District Court of Appeal observed that under the MMBA, “public employees shall have the right to form, join, and participate in the activities of employee organizations … for the purpose of representation on all matters of employer-employee relations.” (Section 3502.) “No public agency shall unreasonably withhold recognition of employee organizations,” and must “grant exclusive or majority recognition to an employee organization” based on a showing that a majority of the employees desire representation. (Sections 3507(c), 3507.1(c).) The MMBA defines a “‘[p]ublic employee’” as “any person employed by any public agency.” (Section 3501(d).) A “‘public agency’” includes “every town, city, county, city and county[,] and municipal corporation.” (Section 3501(c).)

The Court explained that a joint-employer relationship exists when “‘two or more employers exert significant control over the same employees—where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment.’” (United Public Employees v. Public Employment Relations Bd. (1989) 213 Cal.App.3d 1119, 1128.) A joint-employer relationship is established if an entity retains the right to “‘control both what shall be done and how it shall be done,’” such that it retains the “‘right to control and direct the activities of the person rendering service, or the manner and method in which the work is performed.’ [Citation.]” (Service Employees Internat. Union v. County of Los Angeles (1990) 225 Cal.App.3d 761, 769.)

The County contended that PERB had no jurisdiction because the County was not an employer within the meaning of the MMBA (Section 3501 (d)), and that PERB erred when it determined the County was a joint employer of Clinic employees.

The Court explained that the County exercised control over compensation and staffing decisions, and had ultimate control over the Clinics’ financial resources that paid for compensation and staffing. Clinic employees’ salary and benefits were part of a Clinic’s annual operating budget, which must be approved by the County. The Court observed that the County set the fees for the medical services provided by the Clinic and owned all revenues and accounts receivable that a Clinic generated. From that revenue, the County paid the Clinic’s operating costs and covers any shortfalls.

The Court noted that under the Operations Agreements, the Clinics are required to cooperate with each other to ensure minimum staffing levels are maintained. The Clinics must all participate in a “shared call” system with VCMC hospitals for “physician coverage and inpatient hospital services.” The Court explained that this evidence demonstrated that the County exercised its right to control staffing decisions. The Operations Agreements provided a protocol for reimbursement of employee compensation when an employee was transferred from one Clinic to another. Several Clinic employees testified they were required to work “interchangeably” in other Clinics and VCMC hospitals whenever needed.

Moreover, the Court observed that the County had a right to control patient care and personnel policies, training, and other conditions of employment. The Operations Agreements required Clinic employees to comply with VCMC’s policies and procedures and code of conduct, including the performance of day-to-day patient care procedures and administrative tasks. Other rules relating to employee conduct, work place harassment, and dress codes affected their employment conditions also. Clinic employees could be disciplined if they did not follow these policies or rules. The Court remarked that evidence showed the County enforced its work performance standards by conducting training sessions and audits, for example.

The Court continued. Clinic employees were required to wear a badge that identified them as affiliated with VCMC; use VCMC mail, e-mail, and IT systems; and perform various administrative tasks on behalf of the County. The County provided the facilities and equipment the employees used in performing their day-to-day tasks, but placed restrictions on the use of the facilities by Clinic employees and provided that the County may use the facilities for any purpose. Lastly, the Court noted the sworn statements on various federal and state application forms demonstrating that the County retained a right to control Clinic operations. In its Medi-Cal and Medicare applications, the County reported that it had management responsibilities over Clinic operations.

Based on these facts, the Second District concluded that substantial evidence supported PERB’s finding that the County was a joint-employer of Clinic employees. Accordingly, the Second District Court of Appeal affirmed.

MISCELLANEOUS

1. Trial court erroneously concluded defendant could be convicted of felony unlawful taking of a vehicle despite trial court’s correct determination that evidence would not support a jury finding that vehicle was valued at more than $950; moreover, trial court’s error was not harmless.

People v. Martell, 2019 Cal. App. LEXIS 1152 (4th Dist. Nov. 19, 2019)

Facts: LeAndre Martell and his girlfriend, Jasmine, planned to move from Los Angeles to Las Vegas. The couple had taken Jasmine’s things and driven to Jasmine’s mother’s home in Victorville. They had secured an apartment in Las Vegas and planned to complete the move on October 6, 2016. However, that morning, Martell told Jasmine he needed to get some money, left in Jasmine’s 10-year-old Chevy Malibu, which he had been driving with her permission for about a month, and drove to Los Angeles. When he was late returning, Jasmine called him, and Martell told her he would not move to Las Vegas with her and would not return the car. The two fought about the car and broke up. Jasmine moved to Las Vegas without Martell. A few days later she returned to Victorville and reported her car stolen. Jasmine said she never told Martell about the police report, and never contacted the police again.

Jasmine worked to resume the relationship going and Martell was responsive. Martell provided financial help her to get established in Las Vegas and visited her a few times in late October and early November. Jasmine said she had repeatedly asked Martell repeatedly to return the car, but he did not return it during those visits. He said she never asked for the car. In Los Angeles on November 15, 2016, police stopped Martell while he was driving the car and arrested him for driving with a suspended license. They impounded the car and discovered it was registered to Jasmine.

After the arrest, Jasmine went to Los Angeles to retrieve her car, and got back together with Martell. She recovered the car from police impound, picked Martell up from court, and drove to Las Vegas where Martell moved into the apartment they had rented in October. He continued driving her car in Las Vegas until she bought him another one. Although they continued to have problems, the two stayed together until April 2017 when Martell ended the relationship because he started seeing someone else. Later in April, Jasmine lost the car when it was impounded for illegal parking and she decided it was not worth the cost of getting it out.

The San Bernardino District Attorney’s Office charged Martell with unlawfully taking or driving a vehicle and receiving a stolen vehicle. During an instructions conference, the trial court ruled that it would not require a jury to find that the car had a particular value. However, upon consideration of the count for receiving a stolen vehicle (that was eventually dismissed), the trial court found there was no evidentiary basis for actually determining the value of the car. The trial court allowed the charge to proceed to the jury and gave the then-standard jury instruction on unlawful taking or driving a vehicle, an instruction which at that time did not require a finding of value. The jury found Martell guilty of felony unlawfully taking or driving a vehicle. The trial court imposed a three-year term in state prison, doubled because Martell had a strike prior. Martell appealed.

Held: The California Fourth District Court of Appeal noted that Vehicle Code section 10851(a) makes it a crime to take or drive a vehicle, without the owner’s consent, with the intent to deprive the owner of title or possession, either permanently or temporarily. The offense is a “wobbler,” meaning it may be punished as either a felony or a misdemeanor.

On appeal, Martell argued the trial court prejudicially failed to instruct the jury it had to find the car was worth more than $950 to convict him of a felony for permanently taking the vehicle. The Court of Appeal explained that “[t]aking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and a defendant convicted of violating [S]ection 10851 with such an intent has suffered a theft conviction. [Citations.] On the other hand, posttheft driving and joyriding are not forms of theft; and a conviction on one of these bases is not a theft conviction.” (People v. Gutierrez (2018) 20 Cal.App.5th 847, 854.)

The Fourth District noted that after the passage of Proposition 47 in 2014, prosecutors could charge certain theft offenses as felonies only if the value of the property exceeded $950. The California Supreme Court held in People v. Page (2017) 3 Cal.5th 1175 – a decision issued after the trial court’s decision in the current case – that Proposition 47 does affect Section 10851 offenses involving the taking of vehicles worth $950 or less with intent to permanently deprive the owner of possession (permanent taking offenses). (Page, at p. 1187.) The Fourth District observed that such permanent taking offenses are now misdemeanors. (Ibid.) Therefore, the Court explained, if the People sought to prosecute a permanent taking offense as a felony, the People were required to prove the vehicle taken was worth more than $950. (Gutierrez, supra, 20 Cal.App.5th at pp. 855-856.) On the other hand, a finding of value (over $950 or otherwise) is not required to prosecute posttheft driving or joyriding offenses under Section 10851(a), as distinct from the taking portion of the section.

Here, the Fourth District explained that Martell could not be convicted of violating Section 10851 on a taking theory without evidence of the car’s value, but could be convicted on a posttheft driving theory without such evidence. Thus, the trial court instructed the jury under valid and invalid theories of guilt. The Fourth District explained that when that happens, the Supreme Court required that the Court of Appeal “must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [the Fourth District] determine[d] the error was harmless beyond a reasonable doubt.” (People v. Aledamat, (2019) 8 Cal.5th 1, 13.) Thus, because the only valid theory was for unlawful posttheft driving (or joyriding), the Court explained that the evidence must show beyond a reasonable doubt that the jury unanimously found Martell guilty of unlawful driving or joyriding; else the instructional error was not harmless.

The Court found the instruction was not harmless. The Court explained that there was substantial evidence from which a reasonable jury could have found Martell took the car with the intent to permanently deprive Jasmine of possession when he drove it to Los Angeles on October 6. There was also evidence from which a reasonable jury could have found Martell committed unlawful posttheft driving of the vehicle when the police stopped him on November 15. However, the Court determined the evidence supported a further jury finding—that Jasmine had acquiesced in Martell’s use of the car before Martell’s arrest on November 15. If the jury had actually made this finding, they could not have convicted Martell of posttheft driving. Consequently, the Fourth District determined there was reasonable doubt whether the jury (properly) convicted Martell of felony unlawful driving or (improperly) convicted Martell of felony unlawful taking.

Because there was a reasonable chance the jury convicted under the improper theory, Martell was, the Court stated, entitled to have his conviction reduced to a misdemeanor or to be retried for a felony conviction under a proper legal theory. Accordingly, the Court vacated the sentence and remanded for the People to determine whether to accept a reduction of the conviction to a misdemeanor (and to resentence Martell accordingly) or to retry Martell for a felony violation of Section 10851.

A dissenting judge was convinced beyond a reasonable doubt that even if the jury had been instructed that it could not find Martell guilty on an unlawful taking theory unless it found that the car was worth more than $950, it would still have found him guilty on an unlawful driving theory. The trial court’s failure to so instruct the jury was therefore harmless, according to this judge.

1. In a license suspension case, substantial evidence supported finding that officer complied with the 15-minute observation period prior to administering chemical breath testing as required by regulation.

Evans v. Gordon, 41 Cal. App. 5th 1094 (4th Dist. 2019)

Facts: In December 2016, United States Forest Service Officer Ethan White was on patrol one evening when he noticed a pickup truck with its off-road-only lights illuminated while driving on a hard-packed graded dirt road. The truck was approaching a point where the one-way road merged into two-way traffic, and Officer White was concerned the bright lights could interfere with oncoming traffic. Another officer who observed the truck initiated a traffic stop using patrol lights. The truck initially stopped in the middle of the road impeding traffic, despite officer use of an air horn, but was eventually directed to the side of the road. Officer White approached. The driver, Kennith Harold Evans, exhibited signs of intoxication. Evans consented to chemical breath tests. In the first test, conducted at 10:41 p.m., Evans registered a 0.16 percent blood-alcohol level. Evans registered a 0.15 percent blood-alcohol level on the second, conducted at 10:44 p.m. Thus, both tests registered a blood-alcohol level above 0.08 percent. (see Vehicle Code sections 13353.2, 13353.3, 13382.)

Officer White arrested Evans, transported him to the local ranger station, and issued him a form DS-367 administrative per se suspension/revocation order advising him that, based on the chemical breath test results, his license would be suspended, effective 30 days from the date of the order. Officer White reported on the form that, on December 30, 2016, at 10:30 p.m., he observed Evans driving and Evans admitted to driving. He recorded the time and results of the two chemical breath tests and signed the form below the results, certifying under penalty of perjury that the breath test results were obtained in the regular course of his duties, that he was qualified to operate the equipment used, and that the tests were administered in accordance with the requirements of title 17 of the California Code of Regulations (Cal. Code Regs., tit. 17 section 1221.1) (“Title 17”). He also attached a printout from the test device.

Evans was arrested and served with a notice that his license was being suspended for driving a motor vehicle with a blood-alcohol level of 0.08 percent or more. The Department of Motor Vehicles upheld the suspension after conducting an administrative hearing. Evans thereafter filed a petition for a writ of administrative mandate challenging the DMV’s decision. The superior court denied his petition. Evans appealed.

Held: The California Fourth District Court of Appeal explained that California’s “administrative per se law” requires the DMV to immediately suspend the license of any individual arrested for driving under the influence and determined to have driven with a prohibited amount of alcohol in his or her blood. (See Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1207) [discussing the administrative per se law].) The Court noted that Vehicle Code section 13382 specifies that if an individual is arrested for driving under the influence of alcohol in violation of section 23152 or 23153 and the chemical test results show a blood-alcohol level of 0.08 percent or more, “the peace officer, acting on behalf of the department, shall serve a notice of order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person.”

On appeal, Evans contended in part that the evidence did not show Officer White observed Evans for 15 minutes before administering chemical testing as required by Title 17. Evans argued that the DS-367 form indicated on its face that Officer White began observing Evans at 10:30 p.m. and the two chemical breath tests were taken less than 15 minutes later, at 10:41 and 10:44 p.m. This, Evans argued, rendered the test results inadmissible. Evans further argued that the DMV hearing officer and the superior court improperly relied upon a dispatch log, which showed that the arresting officer complied with the 15-minute observation requirement.

However, the Court noted that the WildCAD dispatch log indicated Officer White had called into dispatch to run Evans’s name and license number at 10:24 p.m., and Officer White explained that would have been after he initially contacted Evans. He further explained that the 10:24 p.m. time from the WildCAD dispatch report was more accurate than the 10:30 p.m. estimate he entered on the DS-367 form after transporting Evans to headquarters. Each test would have been conducted after 15 minutes if 10:24 p.m. was the accurate start of observation.

The Court found that the WildCAD log was properly authenticated. Officer White testified that it was a record of the radio traffic between himself and the dispatch center, entered into the CAD system by the dispatcher during the stop, and his testimony indicated it was a standard report commonly relied upon in such circumstances. The Court determined that the finding that Officer White complied with the 15-minute observation period required by Title 17 was supported by substantial evidence because he was aware of the requirement, believed he spent at least 15 minutes conducting field sobriety tests with the driver before conducting the chemical breath tests, and certified under penalty of perjury that he complied with the requirement. Accordingly, the Fourth District Court of Appeal affirmed the judgment.

1. In a Proposition 47 resentencing case, the Court of Appeal court improperly based the value of the stolen access card information on what defendant obtained with the information in assessing card’s value to be more than $950 threshold.

People v. Liu, 2019 Cal. LEXIS 8726 (Nov. 21, 2019)

Facts: Si H. Liu advertised loan services in local newspapers intending to defraud immigrants in the Los Angeles area. When readers sought help obtaining financing, Liu asked them for sensitive documents and information—such as driver’s licenses and Social Security numbers—as well as credit and debit cards. She then went on personal spending sprees, most often by charging purchases to their credit or debit card accounts, charging thousands of dollars.

The People charged her with nearly two dozen criminal counts related to her fraudulent activities. Those charges included theft of access card information under Penal Code section 484e(d). At trial, a jury convicted Liu on all counts. The Court of Appeal reversed one of her convictions but affirmed the rest. Five of Liu’s convictions for theft of access card information under section 484e(d) were among those upheld on appeal.

While Liu’s direct appeal was pending, California voters approved Proposition 47: the Safe Neighborhoods and Schools Act in November 2014. Under Proposition 47, many offenses once punishable as felonies are now treated as misdemeanors. Such crimes include “obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950).” (Penal Code section 490.2(a).) Certain people currently serving prison sentences for past convictions who “would have been guilty of a misdemeanor” if Proposition 47 had “been in effect at the time of [his or her] offense” may seek relief. (Penal Code section 1170.18(a).) Specifically, a person in that position may “petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case” and “request resentencing in accordance with” Proposition 47’s changes. (Id.)

After the Court of Appeal issued its decision in Liu’s direct appeal, Liu petitioned the trial court for Proposition 47 relief for resentencing on five of her convictions for theft of access card information. Her petition argued that the value of the property she obtained was “not more than $950.” The trial court denied the petition.

While Liu’s appeal of the trial court’s denial of her Proposition 47 petition, the California Supreme Court decided People v. Romanowski (2017) 2 Cal.5th 903. Romanowski held that theft of access card information under Section 484e(d) qualifies as a “theft” offense under Section 490.2(a)—and that Proposition 47 therefore reduced such thefts to misdemeanors where “‘the value of the … property taken’” was less than $950. (Romanowski, supra, 2 Cal.5th at p. 917, quoting Section 490.2(a).) Romanowski also declared that the value of stolen access card information meant the same thing as for any other theft offense: “‘reasonable and fair market value.’” (Romanowski, at p. 914, quoting Section 484(a).)

After Romanowski was decided, the Court of Appeal considered Liu’s petition for Proposition 47 relief in light of the Supreme Court’s decision. The Court of Appeal affirmed in part and reversed in part the trial court’s pre-Romanowski denial of Liu’s petition. The Court of Appeal based its decision on its determination that the “stolen access card information would sell for at least the value of the property obtained by a defendant who used the information … .” Because the record established that Liu unlawfully obtained more than $950 using what she stole in relation to three of her convictions, the Court of Appeal affirmed the trial court’s denial of Liu’s petition on those counts. But because the same did not apply for her other two convictions, the Court of Appeal reversed and remanded for further proceedings on those two counts.

Held: The California Supreme Court granted review to decide whether the Court of Appeal properly applied Romanowski. The Supreme Court explained that for theft of access card information in violation of Section 484e(d), courts must calculate “how much stolen access card information would sell for” to determine whether it falls above or below the $950 threshold. (Romanowski, supra, 2 Cal.5th at p. 915.) The Court added that when performing this calculation, courts must determine the value of the information at the time of the “acqui[sition] or ret[ention]” of information on which criminal liability is based. (Section 484e(d).)

The Court noted that in Romanowski the Court had acknowledged the “potential difficulty of putting a price on this property” (Romanowski, supra, 2 Cal.5th at p. 911) because the “‘fair market value’ of stolen access card information,” traded in illicit markets, “will not always be clear” (id. at p. 915). Nonetheless, the Court stated in Romanowski and reiterated here, such difficulty did not relieve courts of the duty to make the calculation. Indeed, the “possibility of illegal sales” of access card information is a critical factor in the analysis deserving of careful consideration. (Ibid.)

The Court observed that the only evidence in the record about the value of the access card information Liu stole was the amounts she unlawfully charged to her victims’ accounts. However, the Court explained that evidence of Liu’s unauthorized charges, while conceivably relevant, did not set a floor on how much someone would be willing to pay for it. The Court elaborated: “That figure may be gleaned from using a range of methods and involves various factors, such as: (1) the access card’s credit limit or the account balance, if knowable when the defendant engages in the acquisition or retention of information that serves as the basis for criminal liability under [S]ection 484e(d); (2) the amount of account information possessed by the defendant; (3) how much the value of the information has been diminished because of its sale in illicit markets; (4) how recently the information was stolen; and (5) the prevalence of comparable information on the illicit market. The extent to which these factors (and others) are relevant to calculating the fair market value of stolen access card information in any given case is a factual question.”

The Supreme Court explained that here the Court of Appeal erred in assuming that unauthorized charges necessarily reflect the minimum fair market value of stolen access card information. The Supreme Court stated that such an assumption mistakenly “conflates the value of the access card information itself with the value of the property obtained through use of the stolen access card information.”[15] The Supreme Court therefore found that the Court of Appeal erred in applying Romanowski on the thin record before it. Accordingly, the California Supreme Court vacated the Court of Appeal’s judgment and remanded to the trial court for further factfinding in light of Romanowski and the Supreme Court’s decision here.

[1] California Penal Code section 487(a).

[2] In Place, federal agents seized the container – luggage – of a suspicious airline passenger without a warrant, a canine unit alerted to one of the bags, and a search warrant was subsequently obtained. The agents found cocaine in that bag. The high court upheld the seizure.

[3] See United States v. Harper, 928 F.2d 894, 896-97 (9th Cir. 1991) (holding that officers had probable cause to believe that the parolee lived in a particular house because, among other factors, the parolee’s family rented the house and two of his brothers lived there), overruled in part on other grounds by King, 687 F.3d at 1189.

[4] See Vehicle Code section 12500(a): ”A person may not drive a motor vehicle upon a highway, unless the person then holds a valid driver’s license issued under this code.”

[5] The trial court also concluded the People had not supplied support for a search for evidence of driving under the influence. Officer Moe observed nothing to suggest Lopez was under the influence, and the hearing testimony made clear the search was directed at finding identification.

[6] (1969) 395 U.S. 752.

[7] (1981) 453 U.S. 454.

[8] (2004) 541 U.S. 615.

[9] Carpenters Local Union No. 26 v. U.S. Fidelity & Guar. Co. (1st Cir. 2000) 215 F.3d 136, 141.

[10] See, e.g., People v. Anderson (1987) 43 Cal.3d 1104, 1138-1141; id. at p. 1141 [“it is our duty to reconsider” precedent when subsequent United States Supreme Court decisions cast doubt on our reading of that court’s earlier decisions]; see also, e.g., People v. Gallardo (2017) 4 Cal.5th 120, 134-135 [reconsidering precedent in light of reasoning of subsequent high court decisions].

[11] Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006); see also 34 U.S.C. section 10151(b)(1).

[12] See City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), reh’g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 U.S. App. LEXIS 21801 (7th Cir. June 4, 2018), vacated, No. 17-2991, 2018 U.S. App. LEXIS 25694 (7th Cir. Aug. 10, 2018).

[13] For example, see the Lilly Ledbetter Fair Pay Act of 2009 (FPA) (Pub.L. No. 111-2, § 4 (Jan. 29, 2009) 123 Stat. 6.), which states in pertinent part states in pertinent part: “[A]n unlawful practice occurs … when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” (Id., § 3 (Jan. 29, 2009) 123 Stat. 5.)

[14] Government Code section 3509.5(a) & (b).

[15] The Supreme Court noted the latter “is punished as a separate crime” under Section 484g (Romanowski, supra, 2 Cal.5th at p. 914), not Section 484e(d).