New California Criminal Laws in 2018

We’ve already touched on four of them: Recreational pot. A ban-the-box law for employers. An overhauled sex-offender registry beginning in 2021. New rules for picking juries in civil and criminal cases.

Here are five more this week, with five more to come next week.

Lawyers can advise clients on cannabis. This is Assembly Bill 1159. It amended the Evidence Code to protect attorney-client privilege and confidentiality for legal services rendered in compliance with state and local law. The lawyer must also advise the client on the current conflict under federal law. Lawyers are already advising the cannabis industry, of course. But generally speaking, there’s no attorney-client privilege for legal services that are sought to help someone commit a crime or fraud. It’s the famous crime-fraud exception to the privilege. This law makes clear that, notwithstanding federal law, there’s no crime-fraud exception here just because it’s pot. The law also amended the Civil Code to support commercial cannabis activity that complies with state and local law.

You can seal your arrest record automatically if you weren’t charged or convicted. This is Senate Bill 393. It amended the Penal Code to permit most people who’ve been arrested but not charged or convicted (or whose convictions were overturned on appeal) to seal their arrest record. You may even be entitled to it as a matter of right in many cases; otherwise, you have to show that sealing your record would serve the interests of justice. Before this law, you couldn’t seal an arrest unless you proved your innocence, which is often difficult or impossible even when people did nothing wrong. But the law doesn’t apply if you could still be charged with something, so you must wait until the statute of limitations has run.

You don’t need to plead guilty to get drug treatment for simple possession. This is Assembly Bill 208. It amended the Penal Code to change a type of drug-treatment program we wrote about two weeks ago. The program used to be called deferred entry of judgment; now it’s called pretrial diversion. Before, you had to plead guilty and complete a program that ran 18 months to three years. If you completed the program, your case was dismissed, but if you didn’t, you’d be sentenced on your guilty plea. Now, you can plead not guilty, and the program runs only 12 to 18 months. But you have to waive your right to a jury trial, so if you don’t complete the program, you’ll go before a judge for trial.

The military diversion program includes misdemeanor DUI. Speaking of pretrial diversion, this is Senate Bill 725. It amended the Penal Code to extend a military diversion program to misdemeanor DUIs. This program enables a court to postpone a misdemeanor prosecution and place the defendant in a treatment program in which he may earn a dismissal if he is or was a member of the U.S. military and may be suffering from significant trauma or mental health problems as a result of his service. It wasn’t clear if the program included DUIs; two cases had decided it differently. This law resolves that it does. But it doesn’t guarantee diversion, and it doesn’t stop the DMV from taking your license.

It’s okay to enter a crosswalk during the countdown signal as long as you reach the other side before it ends. This is Assembly Bill 390. Before, you could only enter a crosswalk on a “walk” sign or symbol, and it was a crime (well, an infraction) to do it during the countdown. Who knew? So what if there’s no countdown, but the “don’t walk” sign or symbol is flashing? You’re not supposed to enter the crosswalk.


The New Justice of the U.S. Supreme Court

Now that Neil Gorsuch has been sworn in, we’ll begin to find out how he wields the law as a member of the highest court in the land.

Some say he’s a natural successor to the Justice whose seat he fills, Antonin Scalia. Here is a profile of Mr. Gorsuch that compares his views to those of Mr. Scalia on matters of criminal law, interstate commerce, and more.

Justice Scalia’s legacy may be complicated, but he defended the rights of the accused in important ways. He championed the right of confrontation, for example. It’s in the Sixth Amendment, and it means that if you’re charged with a crime, your accusers must take the witness stand, testify under penalty of perjury, and face cross-examination in open court. They can’t hide behind hearsay and innuendo. Scalia also championed your right to a trial by jury—that dwindling bastion of freedom and democracy—and he looked after the Fourth Amendment in an age of new technologies.

We hope Justice Gorsuch hews to that heritage and builds on it. Justice Scalia, for example, didn’t care much for the Miranda rule, but we may come to appreciate it more in this century than we did in the last. We may feel differently about the meaning of due process when we see that governments can exercise total dominion over their citizens. We may value legal limits on their power more as we realize that no other limits exist.

To that end, some point optimistically to Gorsuch’s views on overcriminalization, the rule of mens rea, and the rule of lenity.

Others are less sanguine about him in general.

But left, right, or center, most would agree, in the end, with this comment: “We think that all judges should look to the text and history of the Constitution. But [we hope] he will follow all parts of the Constitution, in particular those parts that were added in the 19th and 20th centuries that made our Constitution more equal, more just, more free and pushed us further down an arc of progress.”

Throwing Pitches in a Civil Case

Make that Pitchess with an extra s—as in Pitchess motions. In California, they’re how you ask a court to order the production of a police officer’s personnel file in litigation.

We’ve written about them in the context of criminal cases, but the procedure’s the same in civil cases, as a court of appeal recently explained in an employment case.

A retired police officer had sued his police department for unlawful retaliation. He said the trouble started after he had served 18 years on the force, when he blew the whistle on two officers for filing false reports. He was branded a snitch and ostracized. Even his calls for help in the field would go ignored. He transferred divisions and applied for 14 different promotions but was denied each time in favor of someone less qualified. So he sued.

To prove his case, he moved to obtain the personnel files of the officers who were promoted ahead of him. He argued their records were material to his case because the department claimed to have promoted the more-qualified candidates.

The trial court, however, denied his motion because the records belonged to third parties who had nothing to do with the alleged retaliation. That was the department’s argument, anyway, and the court accepted it.

But that’s not the law.

Because the records were material to the plaintiff’s case, the agency had to produce them for the court to decide what was relevant and discoverable. It didn’t matter that it was a civil case, not a criminal one. It didn’t matter that the records pertained to people who were innocent of wrongdoing. What mattered is that the records were material to the plaintiff’s case, and there was no denying that.

Although the trial court could take a number of steps to balance the rights of third parties, it couldn’t refuse to review the records and test their relevance.

So the court of appeal reversed and sent the case back.

Murder, Manslaughter, or Self-Defense?

True story. One homeless man killed another in a street fight, and they charged him with first-degree murder. He was convicted at trial, but last week, the California Court of Appeal reversed that conviction and sent the case back.


The defendant had pleaded self-defense, but the trial court didn’t let him present expert testimony that homeless people suffer a lot more violence than the rest of us, and as a result, they develop a hypersensitivity to perceived threats.

On appeal, the court ruled that this evidence could’ve made a difference because it would’ve helped the jury evaluate self-defense from his perspective, as the law requires. If a jury found that he actually and reasonably believed in the need for lethal force to defend himself, he wouldn’t be guilty of any crime. If, instead, it found that he actually but unreasonably believed in the need for lethal force, then he’d be guilty of manslaughter but not murder.

As it happened, the defendant was convicted of first-degree murder and sentenced to 26 years to life in prison.

But is that what happened? Here’s the trial record below, so you can decide for yourself.

The dead man’s own friend testified that he watched him inject a “fat” dose of meth that night before storming out the tent they shared. The dose was an 80cc syringe, which an expert described as large enough to kill someone who wasn’t an addict. The friend testified that the man became “agitated,” “aggressive,” and “explosive” before he left.

Within the hour, he was dead.

The defendant didn’t testify at trial, but he’d already confessed to the killing. In post-arrest interviews, he said he knew the man because they both camped in the same area, and he was afraid of him. He’d been stabbed just a few weeks before (which his medical records proved at trial), and he thought the man was one of his attackers.

According to the defendant, that night, the man approached him aggressively and asked for a cigarette. He seemed like he was on something, and the defendant ignored him. The man got angry and asked if he spoke English, and he said he did. The man asked again if he had a cigarette, and he said he did not.

The man then came at him like he wanted to fight. He reached for something in his pocket or waistband, and the defendant thought he was grabbing a knife. So he grabbed his backpack and pulled out a kitchen knife that he had bought after his stabbing. He told the man to get away or he was “gonna send [him] straight to hell.”

They “just started going at it.” Their struggle veered down to the end of the street, where the defendant stabbed the man. When he fell, the defendant “got on top of him [and] made sure that he didn’t get up.” He explained it this way: “I wasn’t gonna wait … to get stabbed. Last time it happened is because I waited … and I wasn’t gonna do that a second time.” He continued to stab the man because he “had to make sure he didn’t … move.”

When asked if he was trying to kill the man, the defendant answered, “Essentially, yes.  I wasn’t trying to tickle him…. Obviously. I’m not gonna lie, yes.”

Afterward, he walked back to his backpack, put the knife in it, and just sat there, waiting for the police. A passerby stumbled onto the scene, saw him, and called 911. The police arrived, found him sitting there, and arrested him. When they asked him what happened, he said, “I got them before they got me.” When asked if he was okay, he replied, “No, he was trying to kill me.” Asked where the knife was, he said it was in the backpack.

A third homeless man had no dog in the fight but overheard some of it. He testified that he was settling in to sleep when he heard two voices arguing. One sounded angry and guttural, like a growl. The other yelled, “Stop, stop,” and moments later, in distress, “Help, help.” He said he stayed put because he didn’t want to get involved. He also testified that he chose his own sleeping place—a stairwell behind the public library—for safety reasons because it was below eye level, and he was less likely to be seen.

Police found the dead body 100 feet away. The primary cause of death was multiple sharp-force injuries to the torso, neck, head, and extremities along with acute methamphetamine intoxication. The blood and urine tested positive for meth, opioids, and other drugs. The defendant’s blood tested negative for all drugs.

On this record, the court of appeal ruled that the trial court abused its discretion in excluding the defense’s expert testimony because it was relevant to whether he actually and reasonably believed he was defending himself.

California Supreme Court Revisits the Law of Access to Police Personnel Files

Police officers are human beings who are capable of making mistakes or behaving badly, just like anyone else, and if they testify in a criminal case, their credibility is always at issue, just like any other witness.

So what do you do if you believe that an officer previously lied, behaved violently, used excessive force, or otherwise acted in ways that undermine his or her credibility in your case, and the information may be documented in a personnel file?

Since the mid-1970s, the law in California has been that you can make a motion in court for disclosure of that evidence. See Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (holding that a defendant can compel the discovery of evidence in an officer’s personnel file that’s relevant to his or her defense).

Since 1978, however, these Pitchess motions, as they’re still called, must follow procedures that the Legislature enacted to balance the privacy rights of police officers. See Pen. Code §§ 832.7 & 832.8; Evid. Code §§ 1043-47. Under these statutes, you must make your motion in writing and serve it on the officer’s agency or department. Your motion must describe the information you seek and demonstrate good cause for its disclosure by explaining its relevance to your case. If your motion does that, the agency must bring all “potentially relevant” records to court so that the judge can review them in chambers out of everyone’s presence except the records custodian and the officer in question. The judge then decides whether there’s any relevant evidence that should be disclosed to you.

Last week, the Supreme Court faced two questions that weighed these statutory procedures against the government’s constitutional duty to turn over evidence that’s favorable to the accused. See Brady v. Maryland (1963) 373 U.S. 83.

The first question was whether prosecutors could inspect police personnel files on demand because of their Brady obligations or whether they had to follow the same statutory procedures as defendants. The question arose because the San Francisco Police Department had created a policy by which it would apprise the district attorney’s office of potential Brady evidence on a rolling basis according to its own procedures; then, if that officer’s name later came up in a case, the district attorney could use the statutory procedure to get the evidence from the court.

In the underlying criminal case, the police department advised the district attorney of two officers whose files might contain exculpatory evidence, but after prosecutors filed a Pitchess motion, the trial court ruled that they could and should inspect the files on their own before deciding whether to file the motion. So did the court of appeal.

The Supreme Court, however, held that prosecutors couldn’t bypass the statutory procedure because they didn’t represent the police department or its personnel in general (or in theory, one might add) and thus had no greater access to its files than the defense (at least not under the statutes, one might add).

But what about Brady? That was the second question. What were prosecutors required to do with the information they had learned from the police department?

The Court held that prosecutors met their constitutional duty simply by telling the defense what the police department told them. They didn’t need to make a Pitchess motion to satisfy Brady because the defense could make one itself.

One suspects the whole kerfuffle was caused by frustration in the court system over who would do the work, given how we allocate resources. If so, the case is another argument to better fund our cash-strapped courts.

In a free society, it turns out, the rule of law costs money.

A Riff on California Grand Juries

The Grand-Jury Clause of the Fifth Amendment applies only to the federal government, not the states, but even so, about half of the states choose to require a grand-jury indictment in order to prosecute a felony case.

In other states, like California, prosecutors have the discretion to decide whether to proceed by indictment or by complaint, preliminary hearing, and information. See Cal. Const. art. I, § 14; Pen. Code §§ 737-40, 889, & 949. If they proceed by presenting the case to a grand jury and obtaining an indictment, there is no preliminary hearing. See Cal. Const. art. I, § 14.1.

Most counties in California, like Orange County, have 19-member grand juries. See Pen. Code § 888.2. Los Angeles County has 23-member grand juries because its population exceeds 4,000,000. Id. A 19-member grand jury needs twelve votes to return an indictment; a 23-member jury needs fourteen. Id. § 940. From the time they are impaneled, grand jurors typically serve one-year terms.

A grand jury may investigate both civil and criminal matters, including by investigating the fiscal or administrative affairs of the county in which it operates and reporting any public corruption or misconduct it finds. Any county may impanel a second, additional grand jury for these purposes, and Los Angeles County may impanel an additional two. See Pen. Code §§ 904.6(a) & 905.8.

In criminal matters, the standard to indict is probable cause: that is, whether the evidence would lead a person of ordinary caution or prudence to believe, and conscientiously entertain, a strong suspicion of the guilt of the accused. Pen. Code § 939.8. See Cummiskey v. Superior Court (1992) 3 Cal. 4th 1018, 1027-29. That’s the same standard used at a preliminary hearing to hold a defendant to answer the charges and bind him over for trial.

Generally, the government may not present inadmissible evidence to a grand jury, including hearsay. See Pen. Code § 939.6. See also People v. Superior Court (Mouchaourab) (2000) 78 Cal. App. 4th 403, 424-25. There’s an exception to the rule against hearsay, however, for the testimony of qualified law-enforcement officers who relay the hearsay to introduce and authenticate documents, exhibits, or other physical evidence for the grand jury to consider. Pen. Code § 939.6(c). Even if the grand jury receives inadmissible evidence, moreover, its indictment will survive if it’s supported by enough admissible evidence. Id. § 939.6(b).

If the government becomes aware of exculpatory evidence, it must inform the grand jury of its existence, and it must inform the grand jurors of their duty and power to order the production of such evidence if they have reason to believe it will explain away the charge. See Pen. Code §§ 939.7 & 939.71. See also Johnson v. Superior Court (1975) 15 Cal. 3d 248; McGill v. Superior Court (2011) 195 Cal. App. 4th 1454, 1464, 1517 (adding that the government may not tread on the grand jury’s independence by attempting to dissuade or discourage it from considering such evidence).

If the government fails to do that, and its failure causes substantial prejudice to the defense, the court can dismiss any part of an indictment that was based on the evidence. Pen. Code § 939.71. See Berardi v. Superior Court (2007) 149 Cal. App. 4th 476, 490-95 (explaining “substantial prejudice” as a reasonable probability that the grand jury would not have found probable cause to indict in light of the omitted evidence).

In general, grand-jury proceedings are secret. See Pen. Code § 915. All communications with grand jurors and witnesses must be placed on the record, but all grand jurors must take an oath to preserve the secrecy of the proceedings. Id. §§ 911 & 938. This oath is also administered to other participants in the proceedings, including court reporters, language interpreters, security personnel (in the case of an inmate-witness), and qualified support persons (in the case of a child-witness). See id. §§ 939, 939.11, & 939.21.

The oath of secrecy does not apply to witnesses, however. Although witnesses are often admonished by the prosecutor or the grand jury not to disclose their testimony or other information, the admonition alone does not carry the force of law in the absence of a court order, and it may be challenged on First Amendment grounds as a prior restraint on speech, which is subject to strict scrutiny by the courts. See San Jose Mercury News, Inc. v. Criminal Grand Jury of Santa Clara County (2004) 122 Cal. App. 4th 410, 414-18.

Why Are We Punishing This Man?

Here’s a set of facts for you.

It appears that an Iowan jury has convicted a 48-year-old man of felony drug charges for growing marijuana that he uses to treat his terminal cancer.

It appears the jury was not permitted to hear one word about why the man was growing the marijuana because there was no medical-marijuana law in Iowa, so his medical condition was legally irrelevant. (Morally, of course, it was.)

It appears the man has two prior drug convictions—one in 2000 for growing psychedelic mushrooms, and one in 2011 for the same pot growing (for the same reason) he was convicted of last week—so he may be labeled a “habitual offender” and receive a three-year, mandatory-minimum sentence. He calls it a death sentence. In 2011, he pleaded guilty to avoid jail time; this time, he took his case to trial.

It appears that his full-time, caretaker wife was convicted along with him, and his parents, who are in their mid-seventies, have also been charged with running a drug house because they allowed their cancer-stricken son to move in and grow marijuana in their home.

The man’s name is Benton Mackenzie, his wife is Loretta, his parents are Charles and Dorothy, and his sentencing is set for August 28.

And boy, is he suffering. In 2011, he was diagnosed with severe angiosarcoma, a rare and aggressive cancer of the blood vessels that produces large, nasty skin lesions. If you’re not faint of heart, you can see a photo of them here, but beware, it’s graphic.

Just this year, the Iowa legislature passed a narrow medical-marijuana bill that permits the parents of epileptic children to use cannabis oil as a treatment. The same cannabis oil Mr. Mackenzie uses to treat his lesions and obtain relief from his terminal cancer.

But there’s no other law on the books to cover anyone else, so Mr. Mackenzie wasn’t allowed to breathe a word to the jury about medical necessity or any such defense, and now he’s a convicted felon again.

Is that what one looks like?

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