San Diego District Attorney

In a federal class action civil suit (Kincaid v. Fresno, CV-F-06-1445 OWW), sponsored by the ACLU and other organizations, 225 homeless people sued the City of Fresno and the California Department of Transportation (DOT) in October, 2006, for destroying their personal property during "sweeps" that were done for the purpose of cleaning up illegal encampments on City and DOT property. During these sweeps (14 in all), the occupants of these illegal encampments (plaintiffs) were told to relocate themselves. Any personal property left at the scene was taken by cleanup crews and immediately destroyed. The court early-on determined that Fresno's practice of immediately seizing and destroying the personal possessions of the homeless plaintiffs during these sweeps violated the constitutional rights of every person to be free from unreasonable searches and seizures. Then, in May, 2008, in a negotiated settlement, Fresno and DOT agreed to pay a total of $2.35 million to the plaintiffs. Also part of the settlement was Fresno's agreement to post a notice at least three days before clearing out any personal property from an illegal encampment area. Lastly, items of apparent value are to be stored for 90 days. While this is not a published decision, and comes from a federal trial court judge only (i.e., it is not binding on anyone other than the parties in this case), it is an important warning to other public agencies faced with the problem of what to do with similar illegal encampments on public property. Before initiating any such "sweeps," you might contact Fresno or the Department of Transportation and get the details of this ruling. It could save you and your agency some money.

For some time now I've freely (and for free) provided police and prosecutors with my legal opinion and analysis (right or wrong) on any number of fact scenarios as they were described to me by the requester. Although I understand that the person asking me the question might very well color or slant a particular situation to play down any screw-ups on his or her part (that's just human nature and often done subconsciously), I've consistently tried to provide objective legal opinions under the assumption that at least I wasn't being purposely misled or otherwise unfairly taken advantage of. However, I recently received a request for a legal opinion from a San Diego County-based law enforcement officer who described for me a situation about which he said he had a difference of opinion with an agency that he declined to identify, but inferred was another law enforcement agency. He also promised me that he would not "throw me down" (although whether or not I'm identified as the source of an opinion is really unimportant to me). So after giving this person my considered, and somewhat extensive (considering I was traveling at the time and punching my answer out on those tiny keys on my Blackberry) analysis of the legal issues involved in his situation, I find out later that the other agency was not only my own former employer, the San Diego District Attorney's Office, but more specifically a particular deputy district attorney I know to be one of the San Diego DA's finest, and someone for whom I have the greatest respect. And not only did this requester "throw me down," I find out later that he did so in a manner that was meant to communicate to the concerned deputy district attorney that because I disagreed with him (an untrue assumption), he (the officer) was not going to handle the situation the way the DDA--who is the one who has to litigate any issues created--was asking him to do it. In other words, this requester, by failing to tell me that he'd already had the assistance and legal opinion of another DDA, was "D.A. shopping." And even worse, he purposely played us off, one against the other, despite the fact that there really was no substantive difference of opinion between us when the situation was put into its proper context. As a result of this unfortunate instance of what I consider to be purposeful dishonesty on the part of the person requesting my opinion, I now feel compelled to limit my legal advice to those situations where I am comfortable that I'm getting the whole story. Also, I'll be less likely to "shoot from the hip," so it might take me a bit longer to answer your question, if I answer it at all. My sincere apologies to all those of you who haven't (and wouldn't) stoop to such game-playing. But I don't like being played like that and don't intend to let it happen again.

Rule: Being a "cohabitant" for purposes of P.C. § 273.5 (infliction of a corporal injury on a cohabitant or former cohabitant) does not require that the couple had a permanent address nor even stable, non-transitory living conditions.

Facts: Christine B. met and initiated an intimate relationship with defendant (a loser with three prior prison terms; two of them "strike" convictions) that lasted a whopping two months before she got tired of his drug usage and physical abuse. During that two months, he moved in with Christine in a room she'd been renting when they first met. They soon got tossed out of that room and began staying in motels or with relatives. They shared meals and shopped together. Christine paid all their expenses because defendant had no income (surprise). Before finally splitting up, they had been sleeping together in a car parked next to the house of a friend of Christine's who wouldn't allow defendant to stay in her house. Also while still together, defendant told Christine that he would kill her if he ever caught her walking on Del Paso Boulevard with another man. Shortly after they split up, Christine was on Del Paso Boulevard to meet a new male friend, "Ronnie." Defendant saw her there and, coming up from behind her, grabbed her shoulder and turned her around while telling her, "I--I told you. What are you doing here bitch?" When Christine asked defendant to let her go, he grabbed her by the hair and face and slammed the side of her head three times against a brick wall. When Ronnie attempted to interfere, defendant struck him, knocking him to the ground. Defendant then grabbed Christine again, dragging her across the street by her hair and arm. When Christine tried to pull away, defendant punched her on the side of her head and in the mouth, breaking off part of a tooth. Ronnie intervened again, allowing Christine to get away and call police. She received medical attention for multiple contusions and lacerations. She had stitches in her eyebrow and on parts of her mouth. Her tooth was broken at the root. Defendant was charged with inflicting a corporal injury on a former cohabitant (P.C. § 273.5(a)) with a great bodily injury allegation (P.C. § 12022.7(e)), and felony battery (P.C. § 243(d)). Convicted by a jury and sentenced (as a "third striker") to 25 years to life plus 7 more years, defendant appealed.

Held: The Third District Court of Appeal (Sacramento) affirmed. Defendant's argument on appeal was that his relationship with Christine was neither permanent nor long enough to make them "cohabitants." He therefore couldn't be convicted of inflicting a corporal injury on a "former cohabitant." The Court disagreed. Penal Code section 273.5(a) provides that any person who willfully inflicts a "corporal injury resulting in a traumatic condition" upon a "cohabitant" or a "former cohabitant" is guilty of a felony. Prior cases have given a broad interpretation to the term "cohabitant." To be a cohabitant, there must be something more than a platonic, rooming-house arrangement. Rather, the term refers to an unrelated couple "living together in a substantial relationship--one manifested, minimally, by permanence and sexual or amorous intimacy." Cohabitation does not require a permanent address. It can even involve unstable and transitory living conditions. Staying together, even temporarily, in the room Christine initially rented, and later with friends and relatives, and lastly in a car, during which they had sexual relations, is ample evidence of cohabitation. When defendant assaulted her, therefore, they were at that point "former cohabitants."

Note: The Court also held that Christine's broken tooth and stitches to various parts of her face were sufficient to qualify as a "serious bodily injury," as defined in P.C. § 243(f)(4), for purposes of the felony battery charge. Although not discussed, the "great bodily injury" enhancement, requiring proof of a "significant or substantial physical injury" (see P.C. § 12022.7(f)), has been defined by case law as substantially the same as "serious bodily injury." The jury also found both allegations to be true.

Rule: To qualify as a "primary caregiver," a person must prove that he has consistently provided caregiving services independent of the act of giving the patient marijuana.

Facts: The Monterey Bay Bank filed a suspicious activity report with the Santa Cruz County Sheriff's Department after defendant made several deposits of money that smelled so strongly of marijuana that the fumes filled the bank and caused the bank to remove the money from circulation. Over a two-month period, defendant made similar deposits totaling $10,750, all in small bills. After an investigation, a search warrant was obtained for defendant's residence. Defendant, who met the officers at the door, told them that he had a physician's medical marijuana recommendation to treat his colitis, dysphoria, and depression. When asked if he sold marijuana to others, he said that he did; that he sold it to five other medical marijuana users, each of whom also had a physician's recommendation to use marijuana for various ailments. The search of defendant's residence revealed an elaborate marijuana growing setup. Found in various rooms of the house were a total of 82 marijuana plants in the flowering or budding stage, 57 "clone" marijuana plants, 48 marijuana plants in the growing or vegetative stage, and three "mother" plants. At trial, a drug expert opined that although defendant may have ingested some of the marijuana himself, his operation was primarily a for-profit commercial venture. Two of defendant's patients, each with a physician's recommendation, testified to purchasing marijuana from defendant for various ailments, as well as through a business called "Hemporium" that defendant used for the distribution of marijuana. Defendant testified that Hemporium, a "caregiving and consultancy" business, was used as a means of giving others safe access to medical marijuana. Defendant also claimed that he counseled his patients about the best strains of marijuana to grow for their respective ailments and the cleanest way to use it. He further testified that in addition to his five patients, he sometimes provided any extra marijuana to two different cannabis clubs. Although defendant denied profiting from the sale of marijuana, he testified that the money he did receive went to pay for nutrients, utilities, and part of the rent. Lastly, he claimed to have taken a couple of his patients to medical appointments on a "sporadic" basis. Despite this testimony, the trial court declined defendant's motion to give the jury the option of finding him to be a "primary caregiver." Defendant was subsequently convicted of both the cultivation and possession for sale of marijuana. (H&S §§ 11358, 11359) On appeal, the appellate court reversed defendant's conviction, finding that the trial court erroneously denied defendant's request to allow a "primary caregiver" defense. The People appealed.

Held: The California Supreme Court, in a unanimous decision, reversed the appellate court and reinstated defendant's conviction. H&S § 11362.5(d) immunizes a patient and the patient's primary caregiver from prosecution for possession (per § 11357) and/or cultivation (§ 11358) of marijuana when the marijuana is possessed or cultivated for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. H&S § 11362.5(e) defines "primary caregiver" as "the individual designated by the person exempted under this section (i.e., the "patient") who has consistently assumed responsibility for the housing, health, or safety of that person." To qualify as a primary caregiver, a person has the in-court burden of proving (i.e., "raising a reasonable doubt") that (1) he has consistently provided caregiving services that (2) are independent of any assistance in the mere consumption of the marijuana, (3) such caregiving having begun at or before the time he assumed responsibility for assisting the patient with medical marijuana. The phrase, "has consistently provided," means that the caregiving services must have taken place during a time period that began at least "at," if not before, the caregiver began to provide help with the use of the medical marijuana. "'Consistently' suggests an ongoing relationship marked by regular and repeated actions over time." "Sporadically" providing caregiving services, as claimed by defendant here, is insufficient. Most importantly, defendant must prove that he has assumed responsibility for the patient's care by taking care of the patient in more ways than merely supplying him with marijuana. With a few minor exceptions, defendant's contacts with his "patients" in this case were exclusively limited to providing them with marijuana. While that makes him a supplier of marijuana, it does not make him a "caregiver." Also, providing excess marijuana to local cannabis clubs is an activity beyond what can be classified as a primary caregiver as defined in the statute. Therefore, defendant was not a "primary caregiver." Lastly, defendant argued that the trial court erred in failing to take into account the enactment of H&S § 11362.7 et seq., including section 11362.765, effective 1/1/ 2004. The Court disagreed. Section 11362.765 merely clarifies that a person who otherwise already qualifies as a primary caregiver, as defined in H&S § 11362.5, is protected from prosecution for "administering, or advising and counseling in the administration or cultivation of medical marijuana." But it does not extend these protections to persons who are not already primary caregivers. Defendant, who does not qualify as a primary caregiver under 11362.5, did not become one merely by "administering, advising, or counseling" his patients about marijuana.

Note: The vaguely written medical marijuana statutes, making them subject to so much abuse, seriously need cases like this one reigning in those who consistently attempt to push the envelope. This case is of course significant in establishing the rule that a person does not qualify as a primary caregiver merely by supplying the patient with his dope. The statute (H&S § 11362.5(e)) clearly says that primary caregivers are those who "consistently assumed responsibility for the housing, health, or safety of that person." But does that mean we're ever going to keep the lid on this growing problem. Not likely, when your governor Arnold Schwarzenegger has publicly advocated giving up the battle and legalizing the stuff altogether. I can smell the fumes from here.

Rule: Failure to advise an in-custody suspect that what he says may be used against him in court is fatal to the admissibility of his subsequent confession.

Facts: Defendant came to Dale Jones' house at 1:00 a.m. and got into a verbal confrontation with him apparently over someone hogging all the dope. Eleven-year-old Mia was present, trying to go to bed, when defendant followed Jones into Mia's room. While continuing the argument, defendant took a pistol from his jacket and laid it on the bed, telling Jones to; "Just shoot me." When Jones declined to take the bait, defendant himself picked up the gun and shot Jones three times, killing him. Defendant was arrested later that same day and interrogated by a detective. A confession was necessary because Mia had buried her head in her pillow when the shooting actually occurred and Mia's mother, who was also present in the house, was a friend of defendant's (and in fact later testified that someone else was the actual shooter). Perhaps recognizing that he was dealing with someone of limited intelligence, the detective led into an intended Miranda admonishment by asking defendant whether he ever watched television. Getting an affirmative response, he then asked defendant if he ever watched "cop shows." Getting another "yes," the detective then asked; "What happens when people get arrested on cop shows?" This apparently confused defendant so the detective finally had to ask; "And they go; 'You got the right,' . . . right?" Catching on, defendant proudly filled in the blank; "To remain silent. They gives you your rights." The detective then made some inquiries about whether, when read his rights during his own prior arrests, he understood those rights. Defendant said that he did. The detective followed this up with; "Didn't have any problem understanding what that meant when they said you have the right to remain silent?" Defendant said "no." Detective: "Didn't have any problem understanding what that meant when they said you have the right to an attorney? Defendant: "All that, I know." Detective: "And didn't have a problem understanding what they meant when they said you have the right to have an attorney present with you before and during any questioning?" Defendant: "Un-huh." Detective: "But if you so desired but could not afford one, an attorney would be appointed to represent you at no charge?" Defendant: "Un-huh." After a couple of follow-up questions to insure that he did in fact understand all this, defendant was questioned over the next 4½ hours with a confession eventually being obtained. Charged with murder, defendant's motion to suppress his confession was denied. Defendant was convicted of second degree murder (along with other charges) and sentenced to prison for 15-years-to-life with another 25-years-to-life on a gun use enhancement. Defendant appealed.

Held: The First District Court of Appeal (Div. 1) reversed. The reversal was based upon the detective's failure to advise defendant that anything he said might be used against him in court. The Miranda admonishment comes in four parts; (1) the right to remain silent, (2) that anything he says may be used against him in a court of law, (3) the right to assistance of an attorney before or during questioning, and (4) that an attorney will be appointed for him, for free, if he cannot afford one. Although it has been repeatedly held that no specific wording is necessary in the admonishment itself, there must at least be a "recognizable version" of each of these four parts to the Miranda admonishment. These four parts are mandated by the Miranda decision itself, each being described as an "absolute prerequisite" to an admissible confession. The detective in this case failed to make any mention of the second part; that anything he said may (or "can and will") be used against him in court. Without some mention of this part of the Miranda admonishment, the subsequent confession should have been suppressed. The fact that defendant probably understood this part of his Miranda rights, as evidenced by comments he later made during his confession, is irrelevant. "(A) defendant's statement is inadmissible unless all four warnings were given to the defendant prior to the interrogation, regardless of the defendant's understanding of his or her rights." "No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead." (Quoting Miranda v. Arizona (1966) 384 U.S. 436, 471-472; italics in original.) Because defendant's confession was important to the prosecution in this case, the error in admitting it into evidence was prejudicial.

Note: Sometimes we can just get too clever for our own good. Leading defendant into the Miranda admonishment by playing on his television expertise was not a bad tactic in theory, but shouldn't be used if it's going to distract an interrogator from providing a complete admonishment. I've always been an advocate of simply reading the defendant his rights from the P.O.S.T.-provided card or other written source. While actually reading a suspect his rights doesn't look near as macho as doing it all from memory, it has the benefit of making it really hard to screw it up. It also makes for much clearer testimony in court where the officer can say that he used an admonishment card and it was therefore not possible that he might have left something out.

Rule: Forcing a person to change locations by threatening to arrest her, when she is merely exercising her First Amendment freedom of expression rights in a public place, may, depending upon the circumstances, be a violation of the U.S. Constitution.

Facts: Civil defendant "John Ascuaga's Nugget" is a private business operating primarily in Sparks, Nevada. Every year, Nugget sponsors a "Best in the West Nugget Rib Cook-Off" in downtown Sparks. In preparation for the event, Nugget always seeks and obtaines a special event permit from the City of Sparks to use a public area known as Victorian Square. The permit allowes for the closing off of some streets around the area. In 2002, plaintiff Janelle Dietrich, representing a local political organization called "Citizens for the Right to Vote," set up a table on a public sidewalk within Nugget's permit area. Dietrich's purpose was to register voters and collect signatures on a recall petition attempting to unseat four city council members in nearby Reno. An employee of Nugget (and later civil defendant) told Dietrich that she couldn't use their area for her purposes, and asked her to leave. When Dietrich refused, the police were called. Officer (and later civil defendant) Mike Cardella of the Sparks Police Department responded and told Dietrich that if she didn't leave she would be arrested. Dietrich therefore moved her table a block and a half away, outside the Cook-Off area. After a half hour of failing to gather any signatures, Dietrich gave up and went home. She subsequently complained to a Nugget official who, the next day, allowed Dietrich to set her table up where she had originally put it. Dietrich remained at that location for the last three days of the four-day Cook-Off, successfully collecting signatures and registering voters. On the evening of the second day, however, a local newspaper ran a story about her having been evicted from the Cook-Off area the day before. The next morning, Dietrich drove her truck past a "road closed" sign set up to cordon off the Cook-Off area, in order to drop off her table and petition materials. Sparks Police Officer (and later civil defendant) Potter wrote Dietrich a ticket for failing to obey a traffic device. Arguing that the ticket was really no more than retaliation for the publicity from the newspaper article, Dietrich challenged it in the municipal court. She was convicted, however, and the conviction was upheld on appeal. She subsequently sued in federal court (per 42 U.S.C. § 1983) the officers involved, the Nugget officials, and the Sparks Police Department. The civil trial judge granted the defendants' summary judgment motion, dismissing the case against all defendants. Dietrich appealed.

Held: The Ninth Circuit Court of Appeal affirmed in part, and reversed in part. First, plaintiff Dietrich argued on appeal that her forced removal from her original site on the first day violated her First Amendment rights. The Ninth Circuit agreed and reversed the trial court's dismissal of this allegation. On this issue, the Court balanced two competing constitutional rights; (a) Dietrich's First Amendment right to collect signatures for a political petition and to register voters (i.e., her "freedom of expression"), with (2) Nugget's equally important First Amendment right not to speak out on political issues. Dietrich was attempting to exercise her First Amendment rights on a public sidewalk which certainly qualified as a "public forum." In such a case, the Government may impose "reasonable time, place, and manner restrictions" on the exercise of First Amendment rights so long as such restrictions (1) are "content neutral," (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternatives for communication. Here, the Court assumed without deciding that Nugget's attempt to keep Dietrich from exercising her rights at the Cook-Out was "content neutral;" i.e., was not intended to suppress her rights based upon the subject matter of her activities. As for the second element, the Court noted that the Government has an important governmental interest in ensuring the public safety and order, and in promoting the free flow of pedestrian traffic on public streets and sidewalks. However, the defendants in this case did not allege that these interests were motivating factors in moving Dietrich out of the Cook-Off area. Their only contention was that the special permit they obtained gave them the excusive right to use the area in question. It doesn't. Dietrich's First Amendment rights trump Nugget's right to exclude others from their Cook-Off area. The Court further noted that another consideration was the fact that it was unlikely others might believe that Nugget supported Dietrich. Nugget needed only to post a sign disavowing Dietrich's message. As such, making Dietrich move to another location violated her First Amendment freedom of expression rights. Because defendants failed to sustain this element, it was not necessary for the Court to determine whether there were other ample alternatives available. Forcing Dietrich to move her table being a constitutional violation, the Court remanded the case back to the trial court to determine whether Officer Cardella--the officer who threatened Dietrich with arrest if she didn't move--was entitled to qualified immunity from civil liability. The Court did uphold the trial court's dismissal as to Nugget, finding no "state action" which is a requirement of a section 1983 civil action (calling the police is not "state action"). Also, as for the Sparks Police Department, plaintiff having failed to prove that the Department maintained a policy or custom of interfering with people's First Amendment freedoms--a necessary requirement for holding a municipal entity civilly liable--that allegation was also properly dismissed. Lastly, The Court found that Officer Potter was not civilly liable for citing Dietrich for driving past the barricades. It having been determined in a criminal court, and upheld on appeal, that (at the very least) probable cause supported the issuance of that citation, no retaliatory motive can be proved.

Note: I have long been an advocate of police officers maintaining a "hands-off" policy in situations such as this, except when necessary to preserve the peace. Taking sides and threatening arrest to gain compliance inevitably leads to a lawsuit that you will lose. In this case, Janelle Dietrich was on public property. But the same holds true even when the complaining party's private property is being used by signature collectors and leaflet distributors, at least if that private property is otherwise open to the public. This includes malls, shopping centers, sidewalks around public buildings, etc. In this case, I don't know if Nevada has any type of trespass statute that Officer Cardella could have used to enforce his threat to arrest Dietrich had she refused to move, but California (so long as pedestrian traffic is not blocked) does not. Threatening to arrest signature collectors, leaflet distributors, and other persons exercising their First Amendment freedom of expression rights in shopping malls, etc., leaves a police officer without any applicable statute with which to carry out the threat. Also, this case was decided under authority interpreting federal First Amendment rules. In California, the courts use the California Constitution's equivalent provisions (Cal. Const. Art. I, §§ 2(a) & 3) to give the "trespasser" with even greater protections. (See Robins v. Pruneyard Shopping Center (1979) 23 Cal.3rd 899; and Fashion Valley Mall, LLC v. National Labor Relations Board (2007) 42 Cal.4th 850.) The far better procedure is to refer the parties to their own private attorneys and let them go to a civil court for injunctive relief or other court order where the "time, place and manner" restrictions can be properly evaluated. Then, with an order from a civil judge specifically spelling out the rules unique to the situation, you can arrest a violator for P.C. § 166(a)(4); violation of a court order. I have all the rules on this problem specifically detained in an article that I will e-mail you upon request.

Rule: A box cutter with the blade exposed is a "razor with an unguarded blade," per P.C. § 626.10(a)

Facts: A school resource officer contacted defendant and a companion when he caught them scaling a campus perimeter fence. Upon confirming that defendant was a student without permission to be off campus, the officer confiscated the boys' backpacks and searched them. In defendant's backpack he found a box cutter with the blade exposed. A Juvenile Court petition was filed alleging a violation of P.C. § 626.10(a), for having "a razor with an unguarded blade" on the school campus. The Juvenile Court sustained the petition and adjudged defendant to be a ward of the Court. Defendant appealed, arguing that as a matter of law, a box cutter was not "a razor with an unguarded blade."

Held: The Fifth District Court of Appeal (Fresno) affirmed. Looking at the intent of the Legislature in enacting P.C. § 626.10(a), the Court found that a box cutter with an exposed blade was in fact a "razor with an unguarded blade." The purpose of section 626.10 in prohibiting the possession of certain types of weapons on school campuses is to reduce violence and provide a safe environment in school. "To allow a student to bring to school a box cutter with its blade exposed would contravene the essential purpose of the statute." In re Michael R. (2004) 120 Cal.App.4th 1203, which reached an opposite conclusion, involved a box cutter with the blade retracted into the handle. In the present case, the blade was exposed, justifying a different conclusion. The Court also rejected defendant's argument that because the box cutter was inside his backpack, the blade was not exposed. The box cutter was still capable of inflicting injury despite being concealed in his backpack.

Note: There's a real fine line between a box cutter with the blade exposed and one with the blade retracted into the handle, given how easy it is to just slide the blade out with no more than a flick of the thumb. But despite the fact that one is just about as dangerous as the other, the statute requires that the blade actually be exposed, so that's what we have to work with. Also note (although I didn't discuss) that the parties agreed that defendant's stated motive for carrying the box cutter was irrelevant. Too bad, in that defendant told the officer that he was carrying it for self-protection because he feared he was going to be "jumped" that day. A suspect copping out to some damning purpose for his actions always helps to impress a trier-of-fact with the need to convict. And, as a side-note; would not the box cutter also be chargeable as a concealed dirk or dagger under these circumstances? (See P.C. § 12020(a)(4) & (c)(24)) I would have liked to have seen this issue litigated as well. I think we would have won the argument.