Constitutional Issues, generally
Category > Constitutional Issues, generally
Updated 2/23/2024The court’s delegation to the coordinator the authority to grant pro per defendant’s request for investigative and ancillary services violated the separation of powers doctrine. he trial court erred in delegating to the coordinator for pro per cases the disposition of investigative and ancillary defense services. Delegation of these services violated the separation of powers doctrine. id: 26926
Updated 2/7/2024Provisions regulating bail agent from soliciting arrestees in the jail was an invalid regulation of commercial speech. Defendant was convicted of violating Insurance Code section 1814 for violating California Code of Regulations, title 10, section 2076. The provision regulated bail licensees from engaging in solicitation of arrestees. However, section 2076 is invalid as a facially overbroad regulation of speech that does not survive the intermediate level of review that applies to commercial speech.id: 27152
Probation condition restricting the minor’s possession of electronic devices violated his freedom of speech by interfering with his ability to communicate on the Internet and via cell phone.The minor was found to have made criminal threats and possessed ammunition. The probation condition barring him from knowing possession or use of all electronic devices (except for use in school projects) imposed a restriction on his freedom of speech that was not narrowly tailored to the circumstances of his crimes and his rehabilitation.id: 25055
Supreme Court strikes down D.C. ban on the possession of firearms.The District of Columbia banned the carrying of unregistered firearms, and registration of firearms was prohibited. After finding that the Second Amendment protects an individual right to bear arms, the Supreme Court, in a 5-4 opinion authored by Justice Scalia, held that the District’s ban on handguns violated the Second Amendment to the extent that it prohibited the possession of a firearm in the home for self-defense. The Court also struck down a District law requiring that any lawful firearm in the home be disassembled or protected by a trigger lock. Justices Stevens and Beryer filed dissenting opinions.id: 21429
Supreme Court holds that Second Amendment protects individual right to own firearms.The Second Amendment provides, “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” In a 5-4 opinion written by Justice Scalia, the Supreme Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in the militia, and to use that firearm for traditionally lawful purposes, such as for self-defense in the home. The Court said, however, that the Second Amendment does not protect a right to keep and bear any weapon whatsoever, in any manner whatsoever, or for any purpose. In particular, the Court explained, the Second Amendment does not foreclose bans on the possession of firearms by felons or the mentally ill or in schools or government buildings or laws imposing conditions or qualifications on the commercial sale of firearms. Justice Stevens and Justice Breyer filed dissenting opinions.id: 21428
There was a separation of powers violation where the refiling of a dismissed complaint under an amended version of section 803, subd.(g) took place after the prior dismissal became final and before the amendment became effective.In 1995, defendant was charged with sex offenses dating back 25 years. The charges were brought under Penal Code section 803, subd.(g) which attempted to revive the expired statute of limitations. The complaint was dismissed since the court found the new limitations period was not intended to revive actions time barred before the statute took effect in 1994. The ruling was affirmed on appeal and the Supreme Court first granted and then dismissed review. Section 803, subd.(g) was thereafter amended in 1996 and 1997 and expressly permitted the revival of such prosecutions even where the limitations period had previously expired. Separation of powers principles preclude retroactive application of refiling legislation in cases where the prior judgment of dismissal was entered before the legislation took effect. There was a separation of powers violation where the complaint was refiled under conditions that complied only with the 1997 version of section 803, subd.(g) not yet in effect when the prior judgment dismissing the same counts became final.id: 16621
The separation of powers doctrine bars prosecution of a public official for aiding and abetting a conflict of interest violation where the official lacks a personal financial interest and the prosecution is based on legislative acts.The Legislature intended Government Code section 1090's “financial interest” element as a limitation on a prosecutor’s intrusion into the legislative arena. The separation of powers doctrine bars criminal prosecution of a public official for aiding and abetting another’s section 1090 violation based on that official’s legislative activity where the official does not hold a personal financial interest in the contract at issue.id: 20607
Court has discretion to order a juvenile disposition on a "discretionary direct file" under Prop 21 which authorizes but does not mandate a criminal trial. The trial court had discretion to order a juvenile disposition after a jury found a 17 year-old minor with no known prior criminal history guilty of assault by means of force likely to produce great bodily injury on a "discretionary direct file" for which Prop 21 authorizes, but does not mandate, a criminal trial instead of a juvenile hearing. The requirement that a prosecutor consent before a court can order a juvenile disposition in this circumstances violates the state constitution's separation of powers doctrine. However, the provision of Prop 21 is severable and the remainder of the initiative is constitutional.id: 17428
Court has discretion to impose a juvenile disposition on a Prop 21 defendant after a guilty plea and admission to firearm use, on a discretionary direct file.A trial court has discretion to order a juvenile disposition after a 15 year-old minor with no known prior criminal history pleads guilty to second degree robbery and admits personal firearm use on a "discretionary direct file" for which Proposition 21 authorizes, but does not mandate, a criminal trial instead of a juvenile hearing. The statutory requirement that a prosecutor consent before the court can order a juvenile disposition in this circumstance violates the state constitution's separation of powers doctrine, although that provision is severable from the remainder of the law. Finally, the post-Prop 21 statute proving the court with discretion to impose a juvenile disposition operates retrospectively.id: 17426
Juvenile court unlawfully delegated decisions regarding family visits to a private therapeutic program.A juvenile placed out of home under the delinquency laws has a fundamental constitutional right to visitation by family members. The trial court unlawfully delegated its judicial power over visitation by effectively delegating all decisions
regarding the family visits to the private program placement.id: 19753
Pretrial RICO seizure of allegedly obscene materials on authority of ex parte order violates First Amendment.The state of Indiana accused an adult bookstore of a civil RICO violation on the grounds that it had committed a pattern of obscenity violations. A pretrial seizure of the store and its contents was made under the authority of an ex-parte order which found the materials to be obscene. The Supreme Court reversed, stating that in this setting, when the First Amendment is at stake, the defendant is entitled to a prior judicial determination of the obscenity issue in a full-blown adversarial proceeding. To allow the government to proceed solely on an ex parte determination that the books were obscene would constitute prior restraint.id: 13561
Probable cause is insufficient to justify a RICO seizure of books and films.When the alleged RICO violation can only be established through proof that the materials which constitute the core of the charge are obscene, a defendant is entitled to more than an ex parte determination that the books are in fact obscene. The 1st Amendment requires that a full adversarial judicial hearing be held to determine that the materials are obscene and that a RICO violation in fact occurred. Without such a showing, it is improper to order the seizure of the books and films which, if obscene, would support the RICO charge.id: 13562
Supreme Court reverses conviction for burning a cross on a black family's lawn.Petitioner and several other teenagers burned a cross inside the fenced yard of a black family. Petitioner was prosecuted under a St. Paul, Minnesota, ordinance making it a misdemeanor to place a burning cross or Nazi swastika on private property knowing that this would arouse anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender. In a unanimous opinion written by Justice Scalia, the Supreme Court held that the ordinance was facially invalid under the First Amendment. The ordinance unconstitutionally imposes special prohibitions on speakers who express views on the disfavored subjects of race, color, creed, religion or gender, while permitting similar fighting words displays that are not addressed to those topics. The court said that burning a cross is reprehensible, but St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire. Justices White, Blackmun, O'Connor and Stevens concurred in the judgment, but disagreed with the reasoning of the majority.id: 9510
Order prohibiting publishing of photographs of defendants violated free speech where there was no showing that it was probable the in-court identifications would be based on newspaper photographs.The trial court erred in prohibiting the media from publishing non-obscured images of the minors in a criminal case. The record did not establish a substantial probability that, absent the prior restraint, the witnesses' in-court identifications of the defendants would be based on photographs seen in the newspapers rather than their observations of the perpetrators at the crime scene. Moreover, there are less restrictive means of protecting the defendants' interest in avoiding tainted in-court identifications. The defendant can move pretrial or during trial to exclude the testimony and require that the court take evidence out of the jury's presence to determine whether the proposed in-court identification was tainted by unduly suggestive pretrial events.id: 14822
Provision prohibiting a knowingly false accusation against a police officer violates the First Amendment because it expressly prohibits expression based on content.Penal Code section 148.6 makes it a crime to knowingly make a false accusation of misconduct against a police officer. It is not a crime to knowingly make such an accusation against a firefighter, a teacher, a paramedic, an elected official, or anyone else. By protecting only peace officers, section 148.6 selectively prohibits expression because of its content. It therefore violates the First Amendment to the United States Constitution.id: 16539
Court committed harmless error by excluding a self-represented defendant from a portion of the prosecutor's opening argument after repeated spurious objections and warnings.A defendant who was representing himself was excluded from the courtroom following repeated spurious objections during the prosecutor's opening argument. The court erred by proceeding in defendant's absence while standby counsel was available. However, the error was harmless where the defendant was left unrepresented for only a brief period of time.id: 17032
Court erred by allowing adult alleged victim to testify behind a one-way glass without a showing that the witness's anxiety was due to defendant's presence.Defendant argued the trial court's decision to allow the use of a one-way glass during a portion of the testimony of the alleged sex offense victim, an adult, violated his rights to confrontation and due process. However, the trial court erred by consenting to the prosecutor's request to use the one-way glass, without holding an evidentiary hearing to determine whether, and to what extent, the testifying victim's apparent anxiety was due to the defendant's presence rather than, for instance, the witness's general emotional fragility or the trauma of testifying in court or revisiting a past experience the witness would rather not recall. The court here simply dispensed with the face-to-face confrontation based upon the prosecutor's unsworn representation that defendant's presence was part of the distraught adult witness's problem.id: 17282
Flag burning is protected under the First Amendment.After publicly burning an American flag as a means of political protest at the Republican National Convention, defendant was convicted of desecrating a flag in violation of Texas law. In a 5-4 opinion written by Justice Brennan, the Supreme Court held that defendant's conduct in burning the American flag was expressive conduct and was therefore protected by the First Amendment. Chief Justice Rehnquist and Justices White, O'Connor and Stevens dissented.id: 9483
Updated 3/7/2024Minor’s comment to another that he was going to blow up the school with an Army grenade was not protected free speech.The minor was found to have made a false report that a bomb would be placed in his school, in violation of Penal Code section 148.1, subd. (c). Contrary to the minor’s claim, his words were not protected speech under the First Amendment, and section 148.1 was not constitutionally overbroad.id: 26244
Updated 3/4/2024California’s gun licensing law was not unconstitutional under Bruen as any potentially offending provisions were severable.Defendant argued California’s handgun licensing scheme was unconstitutional under New York State Rifle & Pistol Assn. v. Bruen (2022) 142 S.Ct.2111. Assuming there were problems with the “good cause” for issuing a license clause, and the “good moral character” clause, those portions were severable from the remainder of the licensing statute and the law was unconstitutional.id: 28137
Updated 2/24/2024Possession of controlled substances while armed does not violate the Second Amendment after Bruen.Possession of a controlled substance while armed (Health and Safety Code section 11370.1(a)) does not violate the Second Amendment following N.Y. State Rifle & Pistol Assn. v. Bruen (2022) 142 S.Ct.2111 since the Second Amendment only applies to law abiding people.id: 28109
Updated 2/4/2024Bruen did not render California’s gun carrying licensing statutes violative of the Second Amendment.Defendant argued that New York Rifle and Pistol Assn., v. Bruen (2022) 142 S.Ct. 2111, rendered California’s general gun carrying licensing statutes (Penal Code sections 26150, 26155) unconstitutional. Bruen only struck down the provision mandating proof of need beyond self-defense, and this would not invalidate the entire statutory scheme. In any event, defendant lacked standing to raise the challenges as the record did not show he applied for, and was denied, a license to possess the gun in question.id: 27643
Updated 2/3/2024Possession of an assault weapon provision does not violate the Second Amendment following Bruen.Defendant was convicted of several offenses including possession of an assault weapon under Penal Code section 30605. Contrary to defendant’s argument, that provision does not violate the Second Amendment following New York State Rifle and Pistol Association, Inc. v. Bruen (2022) 213 L. Ed. 2d 387.id: 27862
Updated 2/2/2024Law prohibiting the possession by a felon does not violate the Second Amendment after Bruen.California’s law prohibiting the possession of firearms and ammunition by a felon (Penal Code sections 29800(a)(1) and 30305(a)(1)) are not facially invalid under the Second Amendment following New York State Rifle and Pistol Association, inc. v. Bruen (2022) 142 S.Ct. 2111.id: 27868
Updated 2/2/2024Felon in possession of a firearm law is not unconstitutional following Bruen.Penal Code section 29800(a)(1), which makes it illegal for a felon to possess a firearm does not violate the Second Amendment following New York State Rifle and Pistol Association Inc. v. Bruen (2022) 142 S.Ct 2111.id: 27884
Updated 1/31/2024Section 25400 is not unconstitutional after Bruen.Defendant was charged with illegally carrying a concealed firearm in her vehicle in violation of Penal Code section 25400. Contrary to her claim and the trial court’s finding, that provision is not unconstitutional under New York State Rifle and Pistol Assn. v. Bruen (2022) 142 S. at. 2111.id: 28062
Updated 1/31/2024Prohibition on felons possessing ammunition does not violate the Second Amendment.Defendant was convicted of being a felon in possession of ammunition in violation of Penal Code section 30305(a). Contrary to his claim on appeal that statute does not violate the Second Amendment.id: 28065
Instruction on unauthorized practice of law, and conspiracy to commit that offense did not violate defendant’s right to free speech. The trial court crafted an instruction recognizing that the charged Business and Professions Code section 6126 requires more than just holding oneself out as an attorney - it requires a transaction. Contrary to defendant’s claim, the instruction given was not overbroad and did not violate defendant’s right to free speech.id: 25050
The provision that criminalizes making false statements to police officers doesn’t violate the First Amendment.Vehicle Code section 31 criminalizes the making of false statements to police officers engaged in their official duties. The appellate division of the San Francisco Superior Court found the provision violates the First Amendment because it isn’t expressly restricted to the making of “material” misstatements. The Court of Appeal construed the statute to include a materiality requirement and found there was no constitutional infirmity. id: 24976
Denying defendants the opportunity to petition for a sentence recall under section 1170, subd.(d)(2) after an earlier modification would improperly punish them for exercising a constitutional right.Defendants’ LWOP sentences were reduced to simple life sentences. Thereafter, defendants filed a petition to recall the sentences under newly amended Penal Code section 1170, subd.(d)(2). The prosecution argued the court having once modified the sentences lacked jurisdiction to recall the sentences under the “plain meaning” of section 1170, subd.(d)(2). However, application of that rule would be unfair and penalize the defendants for exercising their constitutional rights as declared by the U.S. Supreme Court.id: 24940
The doctrine of natural and probable consequences does not violate the separation of powers.Defendant argued the natural and probable consequences theory of aiding and abetting liability violates the separation of powers because it lacks any statutory basis and only the Legislature can define crimes. However, the doctrine is properly justified under the court’s power to interpret the language of the Penal Code based on common law principles.id: 24382
Law increasing penalties for reckless driving by paparazzi does not violate the First Amendment. Defendant, a celebrity photographer, was charged with violating Vehicle Code section 40008, subd. (a), which increases the penalties for reckless driving with the intent to take a picture or make a recording for a commercial purpose. He argued the law unduly infringed on the freedom of “newsgatherers” in violation of the First Amendment. However, section 40008 does not violate the First Amendment. It is a law of general application that does not target speech or single out the press for special treatment.id: 24338
The magistrate erroneously ruled that the threatening rap lyric was protected speech as a matter of law. Penal Code section 140, subd. (a) makes it a crime to threaten a crime victim with violence. Here, alleged threats were made in the lyrics of a rap song distributed on the Internet. The magistrate erred by dismissing the complaint after the preliminary hearing. The magistrate ruled that as a matter of law the lyrics were protected speech and did not constitute a criminal threat within section 140. However, the question of whether the lyrics constituted a threat had to be determined by the trier of fact.id: 24202
Supreme Court strikes down child pornography statute.The Child Pornography Prevention Act of 1996, 18 U.S.C. id: 20135
Supreme Court rejects facial challenge to online child pornography statute. The Child Online Protection Act, 47 U.S.C. id: 20137
Supreme Court holds that cross burning can be crime if defendant has intent to intimidate.By a 6-3 margin, the Supreme Court held that a statute making it a crime to burn a cross does not violate the First Amendment as long as it requires that the defendant burned the cross with the intent to intimidate an individual or group of individuals. A different majority of the Court struck down the Virginia cross burning statute at issue, however, because it provided that any burning of a cross constituted prima facie evidence of an intent to intimidate and thus allowed conviction without proof of intent to intimidate.id: 20160
Provisions prohibiting attempt to send harmful material over the Internet did not violate the Commerce Clause or the First Amendment right to free speech.Defendant was convicted of attempting to send harmful matter over the Internet. Contrary to defendant's claim, the statute does not place an undue burden on interstate commerce in violation of the commerce clause, and does not violate the First Amendment by restricting a substantive amount of protected speech. The statute is sufficiently tailored to serve a compelling state interest.id: 20278
There was no separation of powers violation where the court clerk filed a complaint for failure to appear through an established practice implicitly approved by the City Attorney’s Office. A superior court clerk issued a complaint for a defendant’s failure to appear in court under the authority of Penal Code section 959.1. Defendant argued the complaint was invalid because it was not issued by an executive branch officer with prosecutorial authority. However, the City Attorney’s Office (the relevant prosecutorial agency) through an established practice, implicitly approved in advance the clerk’s routine issuance of complaints for the offense of failure to appear. The practice did not violate separation of powers or due process principles.id: 23717
Prohibiting bail bondsman from soliciting at the jail does not violate the free speech provision of the First Amendment.Defendant was convicted of unlawful contact for bail solicitation in violation of Insurance Code section 1814. Contrary to defendant’s claim, the narrowly tailored restriction on commercial speech prohibiting the direct solicitation of bail at a jail does not violate the First Amendment.id: 23381
The minor’s speech created a clear and present danger of immediate violence and therefore violated section 415, subd.(2). Evidence supported the juvenile court’s finding that the minor disturbed another person by loud and unreasonable noise in violation of Penal Code section 415, subd.(2). While the minor was escaping from an accused theft, the female victim stopped him, but the minor shouted obscenities and vague threats causing her to back off. The minor’s speech was not within the protected range of the First Amendment where the threats and obscenities were disruptive rather than communicative. And he forfeited the First Amendment claim by not raising it at trial.id: 23158
Section 140, subd.(a) which prohibits threats against witnesses or victims does not violate the First Amendment since it applies only to statements a reasonable listener would construe as a true threat.Penal Code section 140, subd.(a) prohibits “willfully” threatening violence against a crime witness or victim. It does not violate the First Amendment because it applies only to those threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely “a serious expression of an intent to commit an act of unlawful violence.”id: 22343
Refiling of previously dismissed child molest charge under 1996 amendment to section 803, subd.(g) did not violate separation of powers doctrine since the dismissal had not become a final judgment before the refiling provision became effective.In 1994, the Legislature enacted Penal Code section 803, subd.(g), in an attempt to revive an expired statute of limitations for certain sex offenses committed against minors. In 1996 and 1997, section 803, subd.(g), was amended to authorize in certain circumstances the filing of a molestation charge even where an accusatory pleading charging the same offense was previously dismissed as time-barred by the courts. The refiling legislation cannot be applied retroactively to reopen court cases that had already been dismissed, if the dismissals had become final judgments before the refiling provision became effective. In the present case, the reinstituted complaint satisfied the requirements of the 1996 refiling provision that was already in effect when the Court of Appeal finally upheld the prior dismissal. Hence the prosecution was not barred by the separation of powers doctrine.id: 16620
Defendant’s constitutional rights were not infringed by his child abuse convictions that were a product of his false and cruel statements that the kids had been molested by their mother and grandfather. Defendant argued his conviction for child abuse based on things he told his children impermissibly infringed on his constitutional rights of parenting and free expression. However, defendant did not have a constitutional right to willfully inflict unjustifiable mental suffering on his children by falsely telling them that their mother and grandfather were both child molesters, that they had been molested by their mother and that their grandfather was the leader of a satanic cult that was plotting to kill them.id: 20767
The trial court did not direct a verdict by instructing that for purposes of section 12031, a driveway may be a public place when it is accessible to the public, and the instruction did not violate the Second Amendment under Heller.Defendant was convicted of carrying a loaded firearm in a public place in violation of Penal Code section 12031, subd.(a)(1). He argued the trial court erred in responding to a jury inquiry during deliberations by suggesting that a private driveway may be a public place for purposes of section 12021 if it was accessible to the public. However, the court’s response did not constitute a directed verdict on the public place element because the instruction left the jury with the task of deciding whether defendant was on the driveway and whether the driveway was reasonably accessible to the public. Moreover, the court’s definition of “public place” did not violate the Second Amendment as defined in District of Columbia v. Heller (2008) 128 S.Ct. 2783. id: 20709
Statutes prohibiting the carrying of a concealed weapon and carrying a loaded firearm in public do not violate the Second Amendment as described in Heller.Defendant was convicted of three firearm-related offenses, including possession of a firearm by a person prohibited from possessing a gun.(Penal Code section 122021, subd.(c)(1)), carrying a concealed firearm (section 12025, subd.(a)(2)), and carrying a loaded firearm in a public place (section 1203). Contrary to defendant’s claims, offenses do not fall within the protection of the Second Amendment as recently described in District of Columbia v. Heller (2008) 128 S.Ct. 2783.id: 20708
Carrying a concealed firearm provision does not violate the Second Amendment under Heller where the offense took place on residential “private” property.Defendant was convicted of carrying a concealed firearm in violation of Penal Code section 12025, subd.(a)(2). He argued that provision violates the Second Amendment principles articulated in District of Columbia v. Heller (2008) 128 S.Ct. 2783, where it is enforced against a defendant who carried a concealed weapon on residential property that was fully accessible to the public. However, section 12025 did not violate the Second Amendment as defined in Heller on its face or as applied to defendant’s circumstances. id: 20707
Admitting evidence of defendant’s religious beliefs did not violate defendant’s First Amendment right to the free exercise of religion. Defendant was an unpaid pastor of an independent Pentecostal Church who was convicted of penetrating two teenage girls who were unconscious of the nature of the act. (Penal Code section 289, subd.(d)(4).) He argued the admission of evidence regarding his religious beliefs deprived him of his First Amendment right to the free exercise of religion and violated Evidence Code section 789. However, the tenets of defendant’s church provided context for the charged incidents. The introduction of the religious beliefs violated neither the First Amendment nor section 789. id: 20357
Engaging in gang activities with family members does not fall within the freedom of association protected by the First Amendment.Defendant argued the true findings on the gang enhancements and the conviction on the gang charge violated his First Amendment right of freedom of association because the other gang members were also family members with whom he had a right to associate. However, defendant was not prosecuted for associating with family members. Familial relationship is not a defense to a gang charge. id: 20282
The provisions of Prop 83, the amended SVP act all relate to sex offenders, their punishment, parole, registration and status as SVPs, and therefore do not violate the single subject rule.Defendant argued the amended SVP act violated the single subject provision in the state constitution. While the law (under Proposition 83) increases the term for sex offenses, increases the monitoring of registered sex offenders, restricts where they can live, and delays parole terms, these topics are reasonably germane to each other and therefore does not violate the single subject rule.id: 20485
Exclusion of testimony of defendant's business attorney did not deprive defendant of the right to present a defense where the testimony involved a mistake of law.Defendant was convicted of the unlicenced transmission of money to a foreign country in violation of Financial Code section 1823. The exclusion of testimony by his business attorney did not deprive him of the right to present a defense. The intended testimony suggesting counsel assured him he was in compliance with California law would have contributed merely to a mistake of law defense, not a permissible mistake of fact defense.id: 18925
California's requirement of five year residency in order to obtain a certificate of rehabilitation did not violate defendant's constitutional right to travel.Defendant, an Arizona resident, argued California's certificate of rehabilitation provision (Penal Code section 4852.01 et seq.) violated his constitutional right to travel by requiring five years of residency, thereby providing disparate treatment of resident and nonresident ex-felons. However, California has a legitimate interest in requiring five years of residency in order to evaluate the conduct critical to a determination of whether a defendant is entitled to a certificate stating that
he or she is rehabilitated and worthy of a pardon.id: 19179
Supreme Court says state courts may not interpret U.S. Constitution to provide greater protection for defendants.The Arkansas Supreme Court held that it could interpret the U.S. Constitution to provide greater protection than the U.S. Supreme Court's own federal constitutional precedents provided. In a per curiam opinion, the Supreme Court held that this position was foreclosed by <i>Oregon v. Hass</i>, 420 U.S. 714, 719 (1975) which held that while "a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards," it "may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them."id: 15125
Supreme Court strikes down Texas law prohibiting sexual intimacy by same-sex couples.By a 6-3 vote, the Supreme Court overruled Bowers v. Hardwick, 478 U.S. 186 (1986), and held that the Constitution bars a state from criminalizing consensual sexual intimacy between members of the same sex. Five members of the Court agreed that the Texas "Homosexual Conduct" law violated the substantive due process guarantee. Justice O'Conner found that the statute violated the Equal Protection Clause.id: 20151
There was no confrontation clause violation where the court refused to order the reluctant witness to remove her sunglasses and scarf.Defendant argued the fact that a reluctant witness wore dark sunglasses and a scarf during her testimony denied him his
Sixth Amendment right to confront his accuser. However, the court, jury and defendant were able to hear the witness's testimony and responses to cross-examination while observing her
facial expressions and body language to a degree that no constitutional violation occurred. Moreover, any error was harmless in light of the overwhelming evidence of guilt.id: 19372
There was no separation of powers violation by allowing the DMV to suspend the defendant's license for a longer period then the trial court in the criminal case.Defendant argued the DMV's suspension of his driver's license under Vehicle Code section 13352, subd.(a)(3), which requires a two year suspension for any person who suffers two alcohol
related driving convictions within 10 years, violates the separation of powers doctrine because it imposes a term of suspension different from the suspension the trial court imposed in his criminal case. However, the DMV need not be constrained by the plea agreement accepted by the court. In fact, the agreement specifically noted the DMV could impose a more severe license suspension, and defendant initialed that paragraph.id: 19107
Prison regulation prohibiting inmates from possessing sexually explicit materials does not violate the First Amendment.The regulation prohibiting prison inmates from possessing sexually explicit materials does not violate the First Amendment or Penal Code section 2601, subd.(c).id: 18472
Defendant had notice that photographing a young girl in panties with her legs spread constituted the creating of child pornography.Defendant argued the creation of child pornography and sexual exploitation provisions under Penal Code sections 311.3 and 311.4, are unconstitutional because they violate the "fair warning"' guarantees of the due process clause. However, "sexual conduct" under those provisions is not confined to nude exhibitions and defendant was on notice that photographing a 15 year-old girl in a bra and panties with her legs spread to display her crotch area, fell within the noted provisions.id: 17696
Defendant voluntarily absented himself from trial by failing to appear for his second day of trial, and completing the trial did not violate his constitutional right to be present.Defendant failed to return to court on the second day of trial. He notified the court he had been threatened and feared being taken into custody. However, defendant did not have the legal option of refusing to appear unless the court promised he would remain free on bail. Defendant voluntarily absented himself from the proceedings and the decision to complete the trial in his absence did not violate his constitutional right to be present.id: 17610
Videotaped testimony of the complaining witness did not violate the confrontation clause where counsel was present for cross-examination and the defendant was hooked up from his detention cell so that he could view the witness and speak to counsel.Defendant was charged with child abuse and assault. He was not denied his rights to be present at trial and to due process when the trial court allowed the adult prosecuting witness, who suffered from established, physical and mental disabilities, to testify at trial by means of a prior videotape recording. The videotaped played for the jury was recorded while the witness was in the courtroom and examined and cross-examined by counsel, and while defendant was in a detention cell wired so he could hear the witness and communicate with his counsel. The court also properly admitted the videotape recording of a police interview with the witness as a prior consistent statement.id: 17030
Proposition 21 provision allowing prosecutors discretion to charge minors in adult court does not violate the separation of powers doctrine even though it may preclude the court from imposing a juvenile disposition.Welfare and Institutions Code section 707, subd.(d), enacted as part of Proposition 21, confers upon prosecutors, the discretion to bring specified charges against certain minors directly in criminal court, without a prior adjudication by the juvenile court that the minor is unfit for disposition under the juvenile law. A prosecutor's decision to file charges against a minor in criminal court is well within the established charging authority of the executive branch, and does not usurp an exclusively judicial power even though the prosecutor's decision effectively can preclude the court from selecting a particular sentencing alternative. Accordingly, section 707, subd.(d) does not violate the separation of powers clause of the California Constitution.id: 16712
Prop 21 does not violate the single subject rule set forth in the California Constitution.Proposition 21 does not violate the single subject rule set forth in the California Constitution. The provisions that change laws regarding gang-related crime and the juvenile justice system are reasonably germane to each other and to the initiative's common purpose of addressing violent crime committed by juveniles and gangs. The provisions which add to the list of offenses that qualify as strikes under the three strikes law, include offenses such as continuous sexual abuse of a child which are more likely to be committed by adults, but are still germane to the initiative. Finally, the voters were adequately informed of the changes to the three strikes law by the materials in the ballot pamphlet presented to the voters.id: 16715
Portion of Prop 21 which amends the three strikes law does not violate the single subject rule.Defendant argued that Proposition 21 violates the single subject rule. He claimed the portion of the initiative which amends the three strikes law is not reasonably germane to the goal of reducing juvenile and gang-related crime. However, the amendment of the three strikes law was intended to apply to juvenile and gang-related crimes. The fact that the amendment also applies to adult criminals does not render the initiative infirm under the three strikes law.id: 16578
The charging discretion provided to the prosecutor by Prop 21 does not violate the separation of powers doctrine.Defendant argued that Welfare and Institutions Code section 707, subd.(d) as amended by Proposition 21 violates the separation of powers doctrine because it transfers from the judiciary to the prosecution the authority to determine whether certain minors should be tried in the criminal system or whether they are fit and proper subjects for juvenile court treatment. However, the fact that a prosecutor's decision to file charges against a minor in criminal court limits the sentencing choices does not unconstitutionally interfere with the judicial function since the prosecutor's discretion is exercised before the court exercises any jurisdiction over the case.id: 16579
Prop 21 does not violate the single subject rule.Defendant argued that Proposition 21 is invalid because it violates the single subject rule found in the California Constitution. However, although Prop 21 is a complex criminal justice reform measure with multiple subparts, each part is reasonablely germane to the general purposes of the initiative.id: 16583
Annoying or molesting a child provision is not overbroad since it is construed to apply only to sexual forms of expression.Defendant argued the offense of annoying or molesting a child under Penal Code section 647.6 is facially overbroad and violative of the First Amendment because it can be applied to nonsexual forms of expression. However, as judicially construed, the statute proscribes only that conduct, including speech, which is motivated by an abnormal sexual interest.id: 16545
Provision outlawing cable TV theft is not vague and does not violate the supremacy or commerce clause.Contrary to defendant's argument, Penal Code section 593d, subdivision (b) is a general intent statute which does not require proof of specific intent to facilitate or aid in the theft of cable television. Moreover, the provision is clear on its face and is consistent with the federal laws governing the cable television industry. Finally, the law does not violate the commerce clause by outlawing the importation and sale of unauthorized cable converters and decoders.id: 15255
Provision prohibiting transmission of harmful matter in an attempt to seduce a minor does not violate the Commerce Clause.Penal Code section 288.2 prohibits sending, by any means, specified harmful matter to a minor for purposes of seduction. Defendant argued the provision violates the Commerce Clause by unduly burdening interstate commerce. However, the provision does not impose a burden upon any protected right of commerce, and its enforcement is not likely to burden interstate commerce.id: 15256
Separation of Powers doctrine prevents defendants from questioning commissioners about their decisions in denying parole.Defendants subpoenaed two Board of Prisons Terms commissioners to explain their reasons for denying parole. However, the separation of powers doctrine and the deliberative process privilege protect the commissioners from testifying as to their decisions.id: 15257
Stalking statute does not violate the right to free speech by not requiring proof of intent to carry out the threat.Defendant argued the stalking statute, Penal Code section 646.9, unconstitutionally affects freedom of speech because it only requires that the threat general reasonable fear. There is no requirement that the person actually intend to carry out the threat. However, a defendant must engage in the prohibited conduct with the intent of causing substantial emotional distress, and the victim must actually suffer substantial emotional distress. Contrary to defendant's claim, someone who is merely "blowing off steam" without more, does not violate the statute. The lack of a requirement of an intent to carry out the threat does not violate the First Amendment.id: 15258
Statute prohibiting loitering in a public place with intent to commit prostitution is neither vague nor overbroad.Defendant was convicted of loitering in a public place with intent to commit an act of prostitution under Penal Code section 653.22. The provision does not violate due process since it provides adequate notice of the proscribed activity and adequate enforcement guidelines. Moreover, because section 653.22 criminalizes the conduct of loitering with intent to commit prostitution, which may constitutionally be prohibited, and does not on its face prohibit "a substantial amount of constitutionally protected conduct," it is overbroad.id: 15259
Statute prohibiting loitering with intent to commit a drug offense is not vague, overbroad, or contrary to separation of powers principles.Under Health and Safety Code section 11532 it is unlawful to loiter in any place with the intent to commit specified offenses involving certain controlled substances. Defendant argued the statute was vague, overbroad, and contrary to the separation of powers doctrine. However, the statute provides both adequate notice of the proscribed conduct and sufficient enforcement guidelines. Further, section 11532 neither criminalizes constitutionally protected conduct nor empowers the police to determine what types of behavior constitute a crime.id: 15260
Statute prohibiting transmission of matters to minors for purposes of seduction prohibits activity rather than speech and does not violate the First Amendment.Penal Code section 288.2 prohibits sending defined harmful matters to minors for the purpose of seducing them. The provision does not violate the First Amendment because the person charged is not a "discourser" seeking merely to communicate indecency to other adults and innocently running afoul of an overbroad statute. Rather, the statute punishes those who seek sexual activity, and who have identified intended victims for pursuit and seduction.id: 15261
Statute regulating distribution of lewd matters to minors over the Internet does not violate the commerce clause.Defendant was convicted of attempting to distribute or exhibit lewd matter to a minor by the Internet. He argued that Penal Code section 288.2, subd.(b) which prohibits such conduct, violates the commerce clause of the U.S. Constitution (Article 1, section 8, clause 3.) To the extent section 288.2, subd.(b) may affect interstate commerce, its effect is incidental at best and far outweighed by the state's abiding interest in preventing harm to minors.id: 15262
Child abuse resulting in death statute is not vague or overbroad, and is not an unconstitutional strict liability offense.Defendant argued that Penal Code section 273ab - assault on a child with force likely to produce great bodily injury resulting in death - was unconstitutionally vague and overbroad because it did not define with certainty the prohibited conduct. However, the statute gives explicit notice to individuals having care or custody of a child under eight years of age that they fall within the purview of the statute. Neither the phrase "care or custody" nor "great bodily injury" has a special legal meaning. Moreover, section 273ab is not an unconstitutional strict liability statute in which a murder sentence is imposed for an offense without a mental state. A strict liability offense is one which dispenses with mens rea, a scienter or wrongful intent element. Section 273ab is a general intent crime.id: 15253
Enhancement for HIV-positive males who have unlawful sexual intercourse with minor females is not unconstitutional for punishing status and does not violate equal protection principles.Penal Code section 12022.85 imposes a three year sentence enhancement on individuals who, knowing they are HIV-positive, have unlawful sexual intercourse with minor females. The provision is not unconstitutional on its face for punishing status rather than conduct. Moreover, there is no equal protection violation in treating these defendants differently than carriers of other communicable diseases or in failing to apply the statute to male victims.id: 15254
There was no First Amendment violation in permitting expert testimony regarding the "apparent age" of actors in a child pornography case since statute requires a real minor.Defendant's probation was revoked after he was found to have violated Penal Code section 311.11 - possession of child pornography depicting a person under age 18 engaging in sexual conduct. He argued that interpreting that provision to allow proof of "apparent age" of the actors was unconstitutional and that the evidence should be limited to that which is competent to establish true chronological age. However, the testimony of expert witnesses on the topic was relevant, admissible and not a First Amendment violation.id: 14825
Detention of material witnesses is constitutional if proceedings are conducted ensuring the interests of the state and witness are heard and protected.Two minors were detained as material witnesses pursuant to Penal Code section 1332 in a special circumstance murder prosecution. The minors argued their continued detention violated their constitutional right under article 1, section 10 of the California Constitution, not to be unreasonably detained. While section 1332 is constitutional, certain procedural safeguards are necessary to ensure that the interests of the state and the witness may be adequately heard and protected. In the present case, the superior court was ordered to conduct hearings considering several factors including 1) the nature of the underlying charges, 2) the nature of the witness' proposed testimony, 3) the length of the proposed detention, and others.id: 14821
Hate crime enhancement targets discriminatory conduct rather than speech and is not unconstitutionally vague or overbroad.The First or Fourteenth Amendments to the United States Constitution do not prohibit penalty enhancements for felonies if a fact finder determines the offender or offenders intentionally selected their victim because of the victim's race, color, religion, nationality, country of origin, ancestry, disability, or sexual orientation.. Penal Code section 422.75 targets discriminatory conduct not speech. Moreover, the provision is not unconstitutionally vague as the phrase because of is sufficiently precise to provide notice as well as guidelines for its application. Finally, because the statute is directed at enhancing punishment for conduct, rather than for speech or opinion, it is not overbroad.id: 13910
Statute prohibiting threats with death or great bodily harm is not unconstitutionally overbroad.Defendant was convicted of two counts of Penal Code section 422 which makes it a crime to threaten another with death or great bodily injury. He argued the statute is unconstitutionally overbroad because it does not require that the speaker intend to carry out the threat. However, defendant's underlying premise that a threat which the speaker does not intend to implement is speech protected under the First Amendment, is simply incorrect.id: 9505
Statute regarding threats on judge was not overbroad where it described threats that are unconditional, unequivocal and immediate.Defendant made two telephone calls to the secretary of the presiding judge of the municipal court during which she threatened to buy a gun and shoot another judge handling an unlawful detainer matter against her if she was evicted from her apartment and became homeless. Defendant argued the conviction for threatening the life of a judge (Penal Code section 76) required reversal because the statute includes conditional threats which are not true threats and thus is overbroad in criminalizing speech which is protected by the First Amendment. However, section 76 adequately expresses the notion that the threats proscribed are only those so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution. Therefore, section 76 is not constitutionally overbroad.id: 9506
Statutory amendment including parents in contributing to the delinquency of a minor provision is not unconstitutionally vague or overbroad.Penal Code section 272 provides that every person who commits any act or omits any duty causing, encouraging or contributing to the dependency or delinquency of a minor is guilty of a misdemeanor. A 1988 amendment thereto provides that for purposes of this provision parents or guardians shall have the duty to exercise reasonable care, supervision, protection, and control over their children. The amendment provides adequate notice to parents with regard to potential criminal liability for failure to supervise and control children and is not unconstitutionally vague or overbroad.id: 9507
Supreme Court holds post office may ban solicitation on postal property.Defendants, volunteers for the National Democratic Policy committee, set up a table on the sidewalk near the entrance of a post office to solicit contributions to their organization. When they refused to leave when ordered to do so, they were arrested and prosecuted for violating postal regulations forbidding solicitation on post office property. Defendants argued that their conviction violated the first amendment. Writing for a four-justice plurality, Justice O'Connor concluded that the sidewalk was not a traditional public forum; accordingly, the regulation was permissible if reasonable. Because of the potential disruption associated with solicitation, and the administrative difficulties of regulating it, the regulation was reasonable. Concurring in the judgment, Justice Kennedy saw no need to determine whether the sidewalk was a traditional public forum; even if it was, Justice Kennedy concluded that the regulation would be permissible as a time, place, and manner restriction. Justices Brennan, Marshall, Stevens and Blackmun dissented.id: 9508
Supreme Court holds that First Amendment does not protect use of peyote in religious ceremonies.In a 6-3 opinion written by Justice Scalia, the Supreme Court ruled that two members of Oregon's Native American Church were not entitled to unemployment benefits when they were fired from their jobs as drug counselors because they had used the hallucinogenic drug peyote as a religious sacrament. The majority held that an individual's religious belief does not excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate. Justices Blackmun, Brennan and Marshall dissented.id: 9509
Supreme Court upholds judge's conviction for disclosing expired wiretap.District Judge Robert Aguilar was convicted of violating 18 U.S.C. 2232(c), by disclosing information that a wiretap had been sought or authorized. The Ninth Circuit reversed the conviction because the 30-day wiretap authorization expired months before the judge's disclosure. The Supreme Court, in an opinion written by Chief Justice Rehnquist, overturned the Ninth Circuit, construing the words possible interception in the statute to include expired wiretap authorizations as long as the defendant had the necessary scienter. The Supreme Court rejected the argument that such a construction violated the First Amendment, both because of the scienter requirement and because, as a district judge, Aguilar had assumed a duty of confidentiality. Justice Stevens dissented, arguing that the statute required the wiretap authorization to be in effect at the time of the disclosure.id: 9511
Supreme Court upholds Ohio child pornography statute.In a 6-3 opinion written by Justice White, the Supreme Court upheld Ohio's child pornography statute, rejecting the defendant's First Amendment claims. The court found that Ohio had a compelling interest in protecting the physical and psychological well being of minors and in destroying the market for the exploitative use of children. The court ruled that the statute was not unconstitutionally over broad and its failure to provide a <i>mens rea</i> was cured by the Ohio Supreme Court's conclusion that the state must establish scienter. However, the court concluded that the conviction must be reversed because it was unclear whether it was based on a finding that the state had proved each of the elements of the offense. Justices Brennan, Marshall, and Stevens agreed that the conviction should be reversed, but dissented from the ruling upholding the statute.id: 9512
Term criminal street gang is not unconstitutionally vague.Defendant argued that Penal Code section 186.22 is unconstitutional in that the term criminal street gang is vague and overbroad, thus violating his First Amendment right of freedom of association. However, while the term gang may be vague, the term criminal street gang is not. The instant statute purports to regulate conduct involving membership in an organization which has as one of its primary activities, and therefore purposes, the commission of crime. It is not merely the passive association with such a group which is criminalized, but the active participation in the group which renders one susceptible to prosecution.id: 9513
The asserted vagueness in the Medi-Cal rules was properly adjudicated as a question of fact in the trial court.Defendant was convicted of Medi-Cal fraud in violation of Welfare and Institutions Code section 14107. He argued the Medi-Cal regulations were void for vagueness because they failed to apprise him that his method of determining the appropriate payment for his services was wrong. However the asserted vagueness in Medi-Cal payment rules was properly adjudicated as a question of fact in the trial court and substantial evidence supported the finding that defendant knew the examinations he performed were not intermediate examinations as defined by Medi-Cal, and that he knowingly submitted false and fraudulent claims for services in violation of section 14107.id: 9514
The hate crime statute provides adequate notice of the prohibited conduct regardless of the simplicity of proving the necessary intent.Defendant argued Penal Code section 422.7, the hate crime statute is void for vagueness because it does not adequately inform anyone of what behavior is prohibited. He claimed the intent can be established simply by proving the defendant deprived the victim of the right to be free of crime. Thus, the specific intent required by section 422.6 collapses into the determination of mens rea for the underlying offense. However, regardless of whether it is a simple matter to prove necessary intent, section 422.6 requires it and thereby provides adequate notice of what conduct is proscribed.id: 9515
Hate crime statute is not unconstitutional as it punishes conduct not bigoted thoughts which are protected expression.Defendant argued that Penal Code section 422.7, California's hate crime statute was unconstitutional. He claimed the provision is void for vagueness for failing to provide adequate notice of the conduct proscribed and that it is overbroad in that it punishes activity protected by the First Amendment - namely, a person's bigoted thoughts. However, the hate crime statute does not regulate speech, it regulates acts of violence intended to interfere with the victim's protected rights. One is free to speak, publish or even advocate racist and bigoted ideas and philosophies without sanctions. The speaker's words become relevant only if at some later date he or she commits a violent act against another because of the other person's race, sexual orientation or other status.id: 9516
Defendant's right of confrontation was not violated where the child molest victim testified with his mother seated next to him.The prosecutor requested that the child molest victim be permitted to testify with his mother seated next to him pursuant to Penal Code section 868.5. The trial court did not violate defendant's right of confrontation in granting the request. The victim testified he wanted his mother beside him because he liked her, thus dispelling any suggestion that he was too traumatized by the sexual assault to testify without her. Moreover, there was a decreased risk of vouching when the support person is the parent of a younger child.id: 9479
Distinction between attorneys and non-attorneys in provision regarding possession of money derived from narcotics trafficking is not unconstitutional.Appellant argued Health and Safety Code section 11370.6 was unconstitutional in that it impermissibly distinguishes between attorneys and non-attorneys in possession of more than $100,000 derived from traffic in narcotics and that the statute was therefore overbroad and vague. When prosecuting an attorney under subdivision (b) the People must prove the attorney fee was accepted with the intent to participate in the unlawful conduct described in subdivision (a) or to disguise or aid in disguising the source of the funds or nature of the criminal activity. Assuming the threshold for convicting an attorney is beyond the level for non-attorneys no fundamental liberty interest or suspect classification is involved. Furthermore, the instant distinction serves the legitimate state interest of avoiding any chilling effect upon the freedom to retain counsel of one's choice. The statute is not facially unconstitutional.id: 9480
Enhancement for crimes committed against victims at least 65 years old is not unconstitutionally vague.Defendant was convicted of robbery and the jury found true a sentence enhancement allegation that the robbery victim was over 65 years of age and such condition was known or reasonably should have been known by defendant (Penal Code section 667.9, sub. (b)). Defendant argued that imposition of the enhancement violated due process because, when applied to age, the disjunctive reasonably should be known element is unconstitutionally vague. However, the reasonable knowledge language in section 667.9, sub. (b) does not make that section constitutionally void for vagueness on its face because all elements of the enhancement including actual knowledge or reasonable knowledge are clear and understandable to any person committing one of the designated crimes and to any trier of fact.id: 9481
Enhancements were not barred by virtue of their commission prior to the enactment of section 667 where the instant offense occurred after that date.Appellant argued the enhancements as to the prior felony convictions occurring prior to 1986 (the enactment of Penal Code Section 667) violated the prohibition against ex post facto laws. The enhancements were not bared by virtue of their commission prior to May 6, 1986, since the instant offense occurred after that date. It is the repetitive nature of the present offense which section 667 punishes.id: 9482
Free exercise of religion clause did not prevent prosecution of Christian Scientist parents for failing to provide medical care to their daughter.Appellants were convicted of felony child endangerment and involuntary manslaughter based on their failure to provide medical treatment for their daughter. They argued that because providing medical treatment is contrary to their beliefs as Christian Scientists, their prosecution was unconstitutional under the free exercise of religion clause of the First Amendment of the United States Constitution. However, the free exercise of religion is not an absolute right and cannot be used as a shield to justify conduct which is life threatening to an offspring.id: 9484
Hate crime enhancement is not overbroad as it increases punishment for bias-motivated conduct, not expressions.Penal Code section 422.7 raises to felony status a bias motivated misdemeanor committed for the purpose of interfering with the victim's exercise or enjoyment of a constitutional right. The minors argued the provision may lead to discrimination on the basis of content and is thus overbroad. However, the statute does not impinge on freedom of expression, but rather increases punishment for misdemeanors committed because of prohibited bias motivation. The enhancement is proper to sanction bias-motivated conduct, not expression.id: 9485
Hate crime statute is not overbroad where, as construed, it is specific as to persons threatened and apparent ability means threat must reasonably tend to induce fear in the victim.Penal Code section 422.6, the hate crime statute, is not overbroad for being insufficiently specific as to the person or persons threatened. The provision is construed to mean a specific group of individuals, not abstract groups or protected classes. Moreover, the provision is not unconstitutional for lacking a requirement of immediacy or imminence. Finally, the phrase apparent ability to carry out the threat is not overbroad as it is construed to imply the threat must be one that would reasonably tend to induce fear in the victim.id: 9486
Hate crime statute punishes discriminatory threats of violence not ideas, and is not a content-based regulation of speech.The minors argued the hate crime statute, Penal Code section 422.6, even if limited in its application to true threats, is a content based regulation of speech impermissible under the First Amendment. However, section 422.6 punishes the discriminatory threat of violence not the thought behind it. The provision does not seek to suppress ideas and is not an unconstitutionally selective content-based regulation of speech.id: 9487
Law prohibiting fraudulent sale of vehicle identification numbers is neither unconstitutionally vague nor overbroad.Vehicle Code section 10752 prohibits the sale or offer to sell, with intent to defraud, of a manufacturer's serial or identification number (VIN) from or for a vehicle. The provision is neither unconstitutionally vague nor overbroad. It must be read to proscribe the acquisition, possession, sale, or offering for sale of a VIN from a vehicle whether by itself or affixed to some portion of the original vehicle. Moreover, in view of the prerequisite specific intent, section 10752 does not impermissibly grant an officer a carte blanche to arrest someone on a whim.id: 9488
Law requiring conspicuous disclosure of the record or video manufacturer does not violate the First Amendment.Penal Code section 653w requires conspicuous disclosure of the name and address of the manufacturer of any audio or videotape offered or possessed for purposes of sale. Contrary to appellant's claim, the provision is not likely to inhibit speech and thus violative of the First Amendment. Moreover, the provision does not conflict with federal copyright laws and there is no question of preemption.id: 9489
Misdemeanor child endangerment statute is not unconstitutionally vague.Defendant was convicted of misdemeanor child endangerment (Penal Code section 273a, subd. (2)), a lesser included offense of felony child endangerment. She argued the statute was unconstitutionally vague because the phrase under circumstances other than those likely to produce great bodily harm or death, spans the spectrum from very prudent behavior to unacceptable behavior bordering on that likely to produce great bodily harm. However, the provision is not vague. It proscribes criminal acts. If these acts are likely to produce great bodily harm, the crime is a felony, otherwise it is a misdemeanor.id: 9490
Municipal ordinance regulating the consumption of alcohol in public was valid despite the improper portion of the provision regarding possession of alcohol.An Oakland municipal ordinance proscribed the consumption or possession of alcohol in a public place. The ordinance was the basis for the determination of defendant. It was determined that Oakland had the authority to regulate consumption of alcohol, but the regulation of possession was pre-empted by the exclusive power of the state. However, the portions were found to be severable and the related version was found to be capable of independent existence. As reconstructed the ordinance was valid and was properly used as a basis for detaining defendant.id: 9491
Preliminary hearing testimony put defendant on notice that the prosecution intended to show he killed the victims by injecting them with poison.Defendant argued that prosecution's failure to expressly inform him that it was relying on a theory of murder by poison deprived him of adequate notice of the charges as required by the Sixth Amendment. However, the testimony presented at the preliminary hearing put the defense on notice that the prosecution intended to show that defendant killed his victims by deliberately injecting them with overdoses of lidocaine. This complied with the notice requirements of the federal constitution.id: 9492
Prosecution of possession for sale and transportation for a member of a church which uses marijuana as a sacrament did not violate his free exercise of religion.Defendant, who is a member of a church which uses marijuana as a sacrament, was convicted of possession for sale and transporting marijuana. He argued the court erred in rejecting his defense based on his right of free exercise of religion. However, defendant also supplied people who were not members of his church. Moreover, exempting him from state laws he violated would impair the interest of third parties - the citizens of California. Contrary to defendant's claims the laws under which he was prosecuted did not substantially burden his exercise of religion and were not required to be supported by a compelling state interest.id: 9493
Prosecutor's questioning of a young child molest victim with the child looking away from the defense table did not violate the confrontation clause.Defendant was charged with multiple counts of child molest. He argued he was deprived of his right to face-to-face confrontation with his accuser when the prosecutor sat or stood next to the witness stand so the victim could look away from the defense table while testifying. When the victim witness is a young child, the risks of damage to both the witness and the truth-seeking function can be especially great. The special procedure adopted by the trial court in this case minimized those risks, while maximizing appellant's opportunity for a face-to-face meeting with his principal accuser.id: 9494
Provision defining a controlled substance analog is not unconstitutionally vague.Health and Safety Code section 11401 defines a controlled substance analog as having a chemical structure substantially similar to a controlled substance, or having an effect on the central nervous system substantially similar to a controlled substance. The statute is not unconstitutionally vague. While the term substantially similar has no scientific meaning, the constitution does not require scientific or mathematical precision.id: 9495
Provision for life without parole where kidnap victim suffers bodily harm is not unconstitutionally vague.Appellant was convicted of kidnap for ransom under Penal Code section 209 which provides for life without possibility of parole where the victim suffers death or bodily harm. He argued this provision was unconstitutionally vague. However, the term bodily harm has come to mean serious injury to the body of the kidnap victim by physical force beyond that necessarily involved in the forcible kidnapping. The term is not vague. Moreover, the victim's injuries in the instant case were quite severe and required surgery.id: 9496
Provision regarding neglect of a dependant adult was not vague as applied to defendant who was responsible for his mother's care.Defendant was convicted of neglect of a dependent adult under Penal Code section 368. The first clause of that provision is uncertain because it does not describe those persons liable for permitting or causing a dependent adult to suffer. It appears to include within its reach any and all persons. However, the uncertainty was of no help to defendant. The trial court decided he was responsible for his mother's care. He was therefore included within the provision.id: 9497
Provision regarding the tinting of vehicle windows was not unconstitutionally vague and did not violate the federal commerce clause.Vehicle Code section 26708(a), prohibiting the application of any material or objects to the windshield and driver's front side windows of a vehicle, incorporates the federal standard that light transmission will not be at a level below 70 percent, promotes legitimate highway safety concerns and is constitutional on its face. Moreover, any material applied to an already factory produced tinted window meeting the federal standard reduces the light transmittance to less than 70 percent.id: 9498
Provision relating to the unlawful killing of a fetus was not void for vagueness.Appellant argued that his second degree murder conviction for the killing of a fetus must be reversed because Penal Code section 187 is void for vagueness. However, the provision makes no reference to viability of the fetus <197> which has been found to be vague in other jurisdictions, and provides ample notice of the prohibited conduct.id: 9499
Resisting arrest statute is not constitutionally overbroad.Petition alleged the minor did unlawfully resist delay and/or obstruct a public officer thereby violating Penal Code section 148. Minor argued that words alone can be construed as sufficient to satisfy the elements of resistance, delay or obstruction. He concluded that the statute encompasses constitutionally protected speech, and is therefore overbroad in its reach. While it may be possible to violate section 148 through speech, the provision deals with core criminal conduct. Because it does not reach a substantial amount of protected conduct it is not constitutionally overbroad.id: 9500
Stalking statute is not vague and adequately informed defendant that punishment will be increased for stalkers who have been the subject of a restraining order.Stalking under Penal Code section 646.9, subdivision (a) is punishable as a misdemeanor or felony. Subdivision (b) provides that when the proscribed behavior is the subject of a restraining order, the crime is a felony. Defendant argued the provision is unconstitutionally vague because it is unclear from the language in subdivision (b) exactly what behavior in subdivision (a) must be proscribed. However, it is not the language of subdivision (a) and the language of the restraining order which must be harmonized, it is that defendant's behavior must have violated both subdivision (a) and the order.id: 9501
Statute allowing attorneys to disqualify a retired judge violated the separation of powers doctrine.Code of Civil Procedure section 170.65, subdivision (a) provides that the prosecutor and defense counsel may stipulate jointly that a retired judge is not capable or qualified to try the criminal case to which he or she was appointed. However, the law, which is currently set to expire on January 1, 2001, is unconstitutional in that it violates the separation of powers doctrine. The law substantially impairs the Chief Justice's constitutional power to appoint retired judges who he determines are capable and qualified.id: 9502
Statute prohibiting participation in a criminal street gang was not vague or constitutionally overbroad.Penal Code section 186.22 prohibits participation in a criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promote or assist in felonious activity by members of the gang. Appellant argued the specific provisions were so vague as to fail to provide notice of the proscribed conduct permitting arbitrary enforcement. He also argued the vagueness of the statute permits it to be construed to cover protected conduct. The court found the statute's terms were adequately defined both by the statute itself and by reference to common law precedent. Finding the terms of the statute to be subject to reasonable definition, the court further found that, by those definitions, the statute did not endanger protected conduct.id: 9503
Statute prohibiting the use of a minor to pose or model in a film, photograph, or live performance involving sexual conduct was not overbroad.Appellant was charged with several counts of employing or using a minor under the age of 17 years to pose for sexual photographs in violation of Penal Code section 311.4, subdivision (c). He argued the statute was overbroad as it emphasized the intent of the photographs rather than the content of the film or photographs and simple nude photos of children could fall within its ambit. However, the statute adequately defines the prohibited conduct and includes a scienter element. The offense is limited to visual works that depict sexual conduct by children below a certain age.id: 9504
Cross burning statute is not an impermissible content-based prohibition on speech and does not violate equal protection.Penal Code section 11411, subdivision (c), makes it a crime to burn a cross on the private property of another for the purpose of terrorizing the owner or occupant or in reckless disregard of that risk. The provision is not unconstitutional as to either its specific prohibition against cross burning or its general prohibition against desecration of religious symbols. The statute targets only acts of terrorism on the private property of another person, not the expression of ideas. It is neither overbroad nor vague, it is not an impermissible content-based prohibition on speech, and does not deny equal protection.id: 9477
Curfew regulation aimed at controlling civil unrest during a time of widespread rioting and looting was not vague or overbroad and did not lend itself to arbitrary enforcement.Following widespread rioting in 1992 the Long Beach City Manager declared a local emergency and issued a curfew regulation. Under the regulation no one was permitted on the City streets between 7:00 p.m. and 6.00 a.m. An officer approached a minor on the street at 7:00 p.m. and advised him that the curfew was in effect and that the boy should go home. The minor just stared at the officer and was then arrested. The curfew was not constitutionally overbroad as it permits the arrest of only those individuals who refuse to obey the curfew after being given notice. Moreover, the curfew does not encourage arbitrary enforcement since it applies to <U>all</U> persons in public places.id: 9478
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245