Posted November 30, 2006

In re Jaime P. (WL 3437058

 California Supreme Court Overrules In re Tyrell J., Relating to Searches of Juvenile Probationers/CYA Parolees

          In People v. Sanders (2003) 31 Cal.4^th 318, the California Supreme Court ruled that police officers must be aware in advance of an adult probationer's or parolee's search condition in order to rely on that ground for making a search or seizure. However, the rule for minors under In re Tyrell J. (1994) 8 Cal.4^th 68, was different, allowing a search or seizure of a juvenile who was on probation, even if the officer was initially unaware of it.

          The California Supreme court has now overruled Tyrell J. and has held that the Sanders "foreknowledge" rule also applies in the case of juveniles. If a minor who is on juvenile court probation or CYA parole is detained or searched without reasonable suspicion, the fact that he or she turns out to have been subject to search terms cannot be used to prevent suppression of resulting evidence.

          Sanders and Jaime P. mean that whenever any suspect not already known to be on probation or parole is initially contacted, one of the first things an officer should do is to ask whether the person is on probation or parole and subject to search and seizure. Assuming justification for any prior Fourth Amendment activity up to that point, subsequent searches and seizures may then be conducted under the known search term, if applicable.

Summaries of some new legislation for 2007 affecting law enforcement and prosecutions are provided below. The full text of the statutes should be consulted for application. 

•       PC § 88. (Amended) City, county and school district officials who take bribes are removed and forever disqualified from public office.

•       PC § 148.3. (Amended) Making a knowingly-false police report that causes activation of the Amber Alert system is a misdemeanor.

•       PC § 186.22. (Amended) Predicate crimes list for pattern of gang activity expands to include violations of 12021, 12025 and 12031.

•       PC § 246.3. (Amended) Negligent discharge of a BB gun risking death or injury is a misdemeanor.

•       PC § 262. (Amended) Requirement that a spousal rape be reported within one year of occurrence is repealed.

•       PC § 290.95. (Amended) Sex crime registrants who apply for work that involves touching minors must disclose 290 status. (Misd.)

•       PC § 490.7. (Added) Wobblette to take more than 25 copies of a current complimentary newspaper to sell, recycle or withhold from readers without consent.

•       PC § 647.6. (Amended) Child-molest-or-annoyance acts on an adult believed to be a child, motivated by unnatural sexual interest in children, is a misdemeanor.

•       PC § 653w. (Amended) Number of copies of pirated audio recordings for a felony filing is reduced from 1000 to 100.

•       PC § 679.08. (Added) Police officers "may" provide crime victims with a "Victim's Rights Card," with specified assistance information.

•       PC §§ 833.2, 13517.7. (Added) POST Commission must develop, and police agencies should adopt, protocols for caring for minor children when the parent/guardian is arrested.

•       PC § 3053.6. (Added) Upon parole of a registrable sex offender, victims/families may apply (with help from the DA) for a "no-contact" order as a condition of parole.

•       PC § 7500. (Amended) Testing/reporting of prisoners who contaminate officers is expanded beyond HIV to include hepatitis B and C, and testing/reporting is now also available to exposed prosecutor/public defender staff.

•       PC § 12076. (Amended) Falsified purchase information by persons who are prohibited by law from possessing firearms is punishable by state prison for 8, 12 or 18 months (½  of 16-2-3).

•       PC § 13012.6. (Added) DOJ crime stats must now tabulate reported identity thefts.

•       PC § 13013. (Added) DOJ crime stats must now show arrest and clearance rates for reported crimes.

•       Also... "Jessica's Law" and the "Sex Offender Punishment, Control and Containment Act" make dozens of changes to statutes relating to unlawful sex and child pornography, and penalties.

•       Fam.C. § 6275. (Added) Officers in DV cases must inform victims about EPOs and "shall request" an EPO if they believe the person is in "immediate and present danger."

•       Fam.C. § 6389. (Amended) A person served with an EPO shall immediately surrender any firearms to the officer serving the order, upon the officer's request. Receipt required.

•       Gov.C. § 6206. (Amended) As with stalking/DV victims, sexual assault victims may prevent PRA disclosure of residence addresses.

•       Gov.C. § 6254.24. (Amended) Staff employees of the DA and PD can apply for confidentiality of their home addresses.

•       Gov.C. § 7480. (Amended) Banks "shall furnish" police any available video of ATM for investigation of criminal access there.

•       Gov.C. § 53153.5. (Added) A person 18 or older who is convicted of filing a false police report is liable for responsive emergency costs.

•       H&S §§ 11383.6, 11383.7. (Added) Felony (16-2-3) to possess precursors for sale, with intent to transfer them with knowledge they will be used to manufacture PCP or meth, or analogs.

•       H&S § 122335. (Added) Wobblette to tether a dog to a doghouse, fence, tree or other stationary object, except during a temporary task, at a recreational area, or during ranching/farming.

•       VC § 2800.4. (Added) Misdemeanor for a driver fleeing police to drive on the wrong side of the road (6 months or $1000 minimum).

•       VC § 9954. (Added, effective 1-1-08) Vehicle manufacturers must provide constantly-available information to a locksmith to enable owners to obtain a duplicate key.

•       VC § 13352.1. (Added) License suspension for first-time deuce probationer (refusal or .20% or higher BAC) increases from 6 to 10 months.

•       VC §§ 21070, 42001.19. (Added) Unsafe operation of a vehicle with injury is an infraction, punishable by $70 or $95 fines.  

•       VC § 21712. (Amended)  It is an infraction to ride/allow a rider in the trunk of an automobile.

•       VC § 21809. (Added) Freeway traffic approaching a stationary emergency vehicle displaying emergency lights must change lanes if practicable or slow down to pass.

•       VC § 22658, et. al. (Amended) Makes major revisions of statutes relating to removal of vehicles from private property and regulation of tow-truck operators, who must release claimed vehicles not yet removed, notify police of tows, accept credit cards and post signs, and not "boot" vehicles or charge excessive fees.

•       VC §§ 23105, 23109.1. (Added) Sets minimum fines and 30 days' jail for reckless driving or speed contest causing specified injuries.

•       VC § 23123.  (Added, effective 7-1-08) It will be an infraction to drive while using a telephone that is not hands-free, with some commercial and official exceptions, or in emergencies.

•       VC § 25253. (Amended) Tow trucks may not display amber flashers on the freeway except while towing or at "unusual traffic hazard" sites.

Posted November 17, 2006

Parra v. San Francisco, DJDAR 15002

California Court of Appeal Rules That One-Year SOL for Administrative Discipline Was Properly Tolled for 8 Months

A number of San Francisco Police Officers were the subject of disciplinary proceedings arising from the "Fajitagate" incident. Citizen complaints were filed and an internal investigation begun in November, 2002. After criminal charges were filed and disposed of, departmental discipline was imposed in July, 2004, some 20 months after the initial complaint.

Government Code § 3304(d) establishes a one-year limitation for bringing disciplinary actions against officers after discovery of the subject conduct, with several exceptions. The court found that two of those exceptions applied in this case.

GC § 3304(d)(1) allows for tolling (suspension) of the one-year period during the pendency of a criminal investigation or prosecution, which was still ongoing in this case through the first 5 months of the 8-month overrun. Even though Lt. Parra was not himself charged with any crime, the court held that the statute still applies, because "a" criminal case was pending, involving the conduct for which Lt. Parra was under internal investigation.

As to the remaining 3 months of the extension, the court ruled that GC § 3304(d)(4) applied. This subsection allows the SOL to be tolled for a "reasonable" time if the investigation involves more than one officer. This case involved 12 officers, and in reviewing the steps taken by the department to establish the facts as promptly as possible, the court found the additional 3 months to be a reasonable extension.

Lt. Parra's request for an injunction to stop disciplinary proceedings against him was denied.

(Absent further appeal or order, this decision becomes final on January 13, 2007.)